Rethinking Self-Defense with Markus Funk

Episode Notes

Transcript

[Music]

Jonathan Amarilio:  Hello everyone, and welcome to CBA’s @theBar podcast where we have unscripted conversations with our guest about legal news topic, stories and whatever else strikes our fancy.  I’m your host John Amarilio of Taft Law and co-hosting the pod with me today is Jen Byrne of the CBA.  Hey Jen.

Jennifer Byrne:  Hey John, how’s it going?

Jonathan Amarilio:  Great, specially because we are joined today by Dr. Markus Funk, former federal prosecutor, former State Department section chief, former law professor at Oxford Northwestern and University of Chicago, current partner at Perkins and Coie and many, many other things of note, the most important of which is undoubtedly friend of the show.  Regular listeners will remember Marcus from our episode about the prosecution of the Chicago outfit and he’s returned today to discuss his new book, Rethinking Self-Defense:  The Ancient Rights’ Rationale Untangled.  Markus, welcome back.

Markus Funk:  Hey, good to be back with you guys.

Jonathan Amarilio:  Thanks for coming.  So Marcus, fantastic book, I read it over the course of the last week.  I thought it was fascinating.  This should be required reading in every criminal law course in the country and I say that not only because it’s interesting because it’s really readable and accessible considering you’re tackling some pretty heavy subjects here.  Before we dive into the lot, tell us why you wanted to write this book, what you were hoping to accomplish to contribute to the conversation around self-defense.

Markus Funk:  Yeah, there’s sort of a practical answer to that and a little bit deeper answer.  The practical answer is that I started working on and it’s very kind of you to call me doctor.  I mean, truly, this is going to get me a lot of hard times with all my friends who find that particularly funny when people on occasion call me doctor, and it’s still a little bit fresh for me because I started my graduate school at Oxford in England back in 97.  At one point, I was told at one iteration of my dissertation which was on self-defense law that if the thesis has a practical application, it’s not an Oxford University PhD kind of worthy thesis.  Then I eventually just gave up on them and they gave up on me and I kind of went into the wilderness and became a prosecutor and did all the other things, some of which you mentioned.

I returned back to it because my dad really was disappointed.  I never finished my thesis and so in sort of the 2000s, I rebooted it again.  There were some stops and starts and eventually warmed down and so they finally gave me the title that I’d worked for or not worked for over the last two decades and that happened last November.  So kind of circling back to your actual question, I wrote the book because that was the title of my thesis and I had actually gotten a book contract prior to even having the thing approved by Oxford and so I wanted to make it a little more adjustable and then frankly deviate a little bit from the — if its practical, then it’s not that useful from an academic perspective and actually make it practical.  I found self-defense law – I like criminal law.  I think my kind of career choices show that and so I found self-defense are particularly interesting kind of from a moral perspective, you know, where does the right of the government come from to tell people when and they can and can’t use deadly force.  Are there limits to that ability by the government to intercede there?  What are the values really that we’re trying to protect when we have a self-defense law?  As I looked into, you know, and I really focused primarily on American, English and German jurisprudence.

As I look into these three countries, I kind of was shocked to find that particularly in the U.S. while we have a very consistent self-defense law and I actually think a very defensible one, there’s almost no discussion of the values, the underlying values that matter.  In other words, when we talk about should a certain situation whether that’s written in the House or Jose Alba or any other self-defense case Bernie Goetz, you know, whether deadly force should be authorized in those cases, the discussion almost invariably becomes sort of on a very high level, political or we could call them moral discussion only if you’re being very generous, and really I thought, “Wow, i can’t believe we don’t have a dialogue that actually digs a little deeper into the values were trying to protect” and so that’s why back in the 90s started looking at the topic and it just took me a bit to finally get my act together and get it finished, and then I, you know, was able to publish the Bloomsbury book not too long after getting the much sought after piece of paper from England.

(00:05:00)

Jonathan Amarilio:  I’m glad you did.  Let’s start out at a high level.  Talk to us a little bit about the law of self-defense in the U.S. generally, specifically about like the spectrum of laws that are out there because I think one thing that may surprise people, you said earlier that the law in the United States is remarkably consistent.  I think the impression that most people have is that it varies a great deal from state to state and they see cases like the Kyle Rittenhouse trial in Wisconsin, the trial of Ahmaud Arbery’s killers in Georgia and they think the law is completely different in all these states.  Walk us through the law generally, what it requires in most states, what the underlying doctrines are?

Markus Funk:  sure thing.  You know, the U.S. law sort of broad strokes is pretty consistent.  I mean it’s consistent in that every state requires you — if I’m going to claim self-defense, if I can make a callable claim, if I can articulate a prima facie case of self-defense, then it’s up to the prosecutor to beyond a reasonable doubt disprove my self-defense claim.  So basically, the parts that are the same everywhere is for me to claim self-defense, I have to be able to persuade the fact finder, again that’s the government’s burden but let’s just stay practical here.  I have to persuade the fact finder that I had a reasonable belief, objectively reasonable belief that I was facing an imminent threat essentially like an immediate threat and that my use of self-defense was reasonably necessary, that’s where again the proportionality, right?  It was no more, no less than was required in order to ward off that threat, right?

So, in that sense, the laws in the different states are very similar.  There are some differences when it gets to things like — the big one you hear about the most is stand-your-ground laws, right?

Jonathan Amarilio:  Stand-your-ground laws.

Markus Funk:  Those are the most controversial.

Jonathan Amarilio:  Exactly, stand-your-ground laws, kind of a version of the castle doctrine which relates to the home.  Stand-your-ground laws and the kind of the corollary to that is a duty to avoid places in which you are expecting to see the need for self-defense really relate to do I have to retreat if a safe retreat is available.  So in about three quarters of the states, they are stand-your-ground laws that say basically you — even if you could safely retreat, you don’t have to retreat.  You can stand your ground.  You can stay where you are.  It’s a little bit of a kind of a message of the old English notion that you need never flee to avoid conduct that in a British gentleman doesn’t need to flee and turn tails.  That’s sort of the way it was articulated back in black stones’ days.  About a quarter of the states do have a duty to retreat.  In other words, if you can safely retreat, you know, come up with your hypothetical I’m being attacked, I’m about to be attacked but I’m right next to a door, an iron door that all have to do is take a step to my right, shut the door and I’m safe.  In other words, a safe retreat.  If I can have a safe retreat, then I need to do that.  I can’t just use deadly force.  So, that’s the big difference between states.  Like I said, about a quarter requires safe retreat.  About three-quarters have stand-your-ground laws.  So that’s one of the big ones.

Another one is provocation in some states and notably Wisconsin.  That’s you mentioned Rittenhouse in Wisconsin in order to trigger the provocation exception.  In other words, you can’t provoke a situation and then claim the right to self-defense.  I can’t just do something that puts me in a situation where I then can use deadly force.  In the Rittenhouse case, what the prosecutors completely overlooked perhaps because they’re ignorant of the law, perhaps because they knew they were having problems, “is that you have to do something that would provoke other people and that thing has to be unlawful”, right, unlawful, in other words a tort or a crime under Wisconsin law.  So, they would have to prove, they had to prove that Rittenhouse provoked the attack and that means that he was doing something that would cause other people to act the way they did and it was because he did something unlawful.  Nowhere during the opening or closing statements does the word unlawful ever come up at all.

So, you know, as anyone who’s been a prosecutor or defense attorney knows, your job is to meet the elements of the case and if one of the elements is to prove unlawfulness, you’ve got to show what Rittenhouse did that was unlawful and that’s where they completely dropped the ball.  You know, I think you can have opinions about whether or not that case should have resulted in an acquittal or a conviction, and I can see arguments on both sides but one thing that I don’t think can be argued is that the prosecutors bungled that case pretty badly.

Jennifer Byrne:  Talking about Rittenhouse, I mean if you were handling that case as the prosecutor, how would you have done so differently?

Markus Funk:  Well, of course look, I mean one of the great dangers when you’re in sort of the business we’re in right now is second guessing.  Now, I’ve already second guessed so I might as well go down that path a little bit further.

(00:10:02)

Jonathan Amarilio:  I mean Markus —

Jennifer Byrne:  We open the door, walk right in it.

Jonathan Amarilio:  Right.  You’re talking to an appellate lawyer.  That’s all I do.

Markus Funk:  Right.  All right.  Okay.

Jonathan Amarilio:  So, lay it out then.

Markus Funk:  I mean it’s really the big thing is that they talked about — I spoke about provocation, the very colloquial sense.  You know, he was acting like a jerk.  He was walking around with his bulletproof vest and his baseball cap and his machine gun acting like he was Rambo.  You know he could have just let them hit him and he could have fought with fists like we used to do in the high school.  This is the prosecutor saying this.  You know, that is all good and well if that may be sort of a rhetorical twist but fundamentally, you don’t get around the elements, right?  So even if they convicted him, had they convicted him, he would have a great appellate argument which is at no point did they prove unlawfulness?  In fact, they didn’t even try to prove it.  They’d never even use the word unlawful in closing or in rebuttal.  So, you can have other gripes about the style in which some of these cases were being handled.  Those on the margins really fall away, but I think a big one and a big one that was almost completely overlooked is the fact that they just didn’t use the term unlawful.

I got the transcripts.  Actually, we had to send a courier out to get them of the closing because they weren’t available online or anywhere else and I’ve thought for sure that I dismissed it that there would be some discussion of unlawfulness of his conduct and they could have said he was creating a public disturbance or other things they could have argued.

Jonathan Amarilio:  Or they could have solved maybe, right?  Getting in people’s face with it.

Markus Funk:  Yeah.  Look, there are arguments to be made, but it’s always hard to second guess a jury or a fact finder but just from a purely law and order and law perspective, they didn’t even try.  If you don’t try, then in our system of justice, you typically aren’t supposed to win.  So, how they would have been able to sustain a conviction without even addressing this key element is puzzling to me.  I’m sure every case I’ve ever tried a bunch of folks who get together and say hey he really screwed this up, that up, the other thing up.  But here, we have a combination of a case that was lost their high-profile case that caused great outrage and a case like that deserves a hard look at kind of what was done and no matter whether you think Rittenhouse was justified or not justified, it almost doesn’t matter, at least maybe to these days it does matter.  It shouldn’t matter.  What should matter is that you have elements that you have proven our system of justice and that when you don’t even mention an element, then you know you didn’t prove it.

Jonathan Amarilio:  So there’s no shortage of high-profile cases that deal with this topic which is why I think it’s going to be really interesting for our audience.  You were just discussing Rittenhouse go back about decade.  You’ve got George Zimmerman and Trayvon Martin, Ahmaud Arbery.  I think if I read it correctly, the defendants in that case just receive — two of them just received life sentences on a hate crime violation on top of their prior convictions.  Jose Alba in New York was making a lot of headlines.  Prosecutors recently decided to drop those charges.  Let’s break down Ahmaud Arbery a little bit because —

Markus Funk:  Sure.

Jonathan Amarilio:  — because I think that’s one that particularly drew a lot of nationwide attention.  What are your thoughts on the way that case was handled?

Markus Funk:  Yeah.  Look, I thought that — and I thought this from the beginning, I remember spending a fair amount of time watching that video which is obviously very disturbing video of Arbery kind of jogging along and then taking a right as the father and son duo are basically getting their guns out and he kind of drives around the car and then tries to grab the gun of the son, the shotgun, and then get shot.  To me, under Georgia law, that was a clear case of Ahmaud Arbery engaging in self-defense, justified self-defense.  He was being threatened with kidnapping or worse.  He was being threatened with a firearm.  There was no justification for it and so he would have been entitled to just shoot the son but he didn’t.  He just tried to grab his gun.  So, once you’re justified, there’s a thing called the doctrine against mutual justifications.  Once, Arbery was justified in using defensive force, the son was not authorized or justified to use it and so he couldn’t bring to shoot.

Jonathan Amarilio:  Correct.

Markus Funk:  So to me, it was very clear that those two men should be prosecuted, and I said so much both in an article I wrote as well as in an interview I gave to the Washington Times — Washington Post rather, I thought that that was a very strong case.  Again, never know what the jury’s going to do, but it really strong case against the two men who claimed that they were essentially trying to apprehend someone who had broken into or trespassed on a residential construction zone.  So, I thought Arbery was rightly decided.  Yeah, that was my take on that case.

Jonathan Amarilio:  So let’s just compare the two that we’ve discussed before because I think a little bit of detail is worth it for our audience, what distinguishes the Arbery case from the Rittenhouse case because just on the surface of it, you have situations where —

(00:15:00)

— someone is confronted with a gun and in the Rittenhouse case, the person with the gun was allowed to claim self-defense and the Arbery case, it went the other way.  What separates the two?  Because I think there is a fairly sharp difference between them.

Markus Funk:  Yeah, the two are very different cases.  I’ll just sort of in broad strokes again, the Rittenhouse case involved the defendant who made a claim of self-defense.  It was now up to the prosecutor to disprove that self-defense claim.  One way they could have just proven it is to show that Rittenhouse had provoked the conflict and they just didn’t do it and they couldn’t do it because they didn’t even mention the — they could do it but under their argument, they didn’t even mention the key element of provocation which is unlawfulness.

Jonathan Amarilio:  Yeah.

Markus Funk:  So in that case, it was basically the prosecutors not meeting the elements of the offense.  In the Arbery case, there was really no plausible self-defense argument for the father and son duo to make.

Jonathan Amarilio:  Because they went looking for the trouble.

Markus Funk:  They went looking for the guy that they thought they could apprehend using a firearm

Jonathan Amarilio:  Right.

Markus Funk:  They were wrong about that, right?  As we know, ignorance of the law is no excuse in this context at least.  So, they thought they were authorized to hold him at gunpoint.  They were not and in fact what they did by pointing a gun at him was threatening him with deadly force which authorized him to in turn use force against them.

Jonathan Amarilio:  Right.

Markus Funk:  So they were never justified in doing what they did.  So, the real question there was whether when they were trying to apprehend him, you know there’s a special rule about trying to apprehend the burglar and you’ve got to have essentially first-hand knowledge and they just didn’t have that.  They didn’t have the requisite information to be able to act in the way they did.  So in their case, there was ignorance of the law and they just didn’t have a justification.  They never did and therefore their murder of Arbery was in fact a murder not just a killing.

Jennifer Byrne:  That was going to be my question is you know, what circumstances would have had to been present for them to be justified and in taking the steps that they did?

Markus Funk:  Yeah.  Now, I’m going back in the memory banks a little bit on Arbery but if they had seen Arbery, let’s say break in to the construction area, there’s a lot of evidence that a lot of people went in there very regularly.  There’s video of Arbery walking around inside but he doesn’t seem to be stealing anything but here, they were told that he did that and they had some video cameras up or some neighbors put some cameras up.  They just didn’t have the predicate knowledge of unlawful conduct by Arbery to be able to effect essentially what effectually a citizen’s arrest.

Jonathan Amarilio:  So let’s go over to the Jose Alba case because that got a lot of headlines in New York.  I’m not sure how many headlines it got outside of New York metro area.  My understanding of the basic facts was there’s a convenience store cashier.  There was a woman inside the store who was purchasing a bag of chips but didn’t have money for them.  They got in a verbal altercation about it.  The woman’s boyfriend came back behind the counter, pushed the cashier, Mr. Alba, down on the ground standing over him and threatening him but was not armed and Alba stabbed him and claimed self-defense.  Walk us through that case a little bit.

Markus Funk:  Yeah.  I mean it’s surreal if you watch the video.  Really again, all these cases are tragic, right?  I mean they’re all tragic cases.  The Alba case I think the district attorney should have never charged Alba with second-degree murder and the reason he shouldn’t have charged him is not — I don’t think — this is again my perspective on this.  I don’t think that Jose Alba had a strong argument that he feared death or serious bodily injury at the hands of his attacker.  Rather, the argument that he had was in New York, there’s a law that says essentially if you are in a dwelling or in a business and someone either breaks in or exceeds their authorization, in other words goes in a place you’re not allowed to go with the intent to commit a crime therein, you can use deadly force.  Here, Alba was in his kind of little area, the cashier area that was enclosed, you know had like the glass partition was open on the side but was not open to the public.  So, when his attacker came around and pushed him and assaulted him, clearly Alba was justified under New York law in using deadly force to not defend himself in sense of his own person but he under the law, his attacker was trespassing, was committing a crime or about to commit a crime, assault and battery, in that place and therefore Alba had almost a foolproof defense argument.  But again, you know, the media focus was all on whether when he was being assaulted, whether Alba really feared for his life and in that regard, you know, New York is pretty standard but you have to have some either death or serious bodily injury is what you have to fear. You know, it’s a harder argument for Alba’s defense team to make that that what his fear was.

(00:20:04)

The stronger argument again was preventing a crime in an area that this other guy didn’t have an authorization to be in.

Jennifer Byrne:  As to the facts, the female in that case was armed though if I’m not mistaken because he suffered stab wounds from some kind of weapon that she was using to, I don’t know, break up the argument reportedly but if you watch the video, it’s pretty clear that he had no escape from that situation and could have maybe made the argument that he reasonably feared for his life based on the fact that she was armed, no?

Markus Funk:  Well, no.  No, in the following sense, he didn’t know she was armed, right?  So, when he stabbed his attacker in the neck seven times I think, at that point, he was facing — he never saw her coming.  It’s only after the whole thing is over that he looks at his arm and sees its cut and emerges that the girlfriend had been stabbing him as well.  So, you know, he has to have a reasonable what we call internal and external justification.  He has to be externally justified by the fact like the facts as they were, but he also had to believe that that was happening.  So, if I shoot someone and because I want to kill him and unbeknownst to me that person had a gun under his coat and was actually just about to shoot me, I can’t claim self-defense because even though it was self-defense in terms of externally, right, the facts are that had I not shot him first, he would have shot me.  I didn’t know about that and so I can’t claim self-defense.  Here, I shouldn’t say flat no to you Jen.  I should just say that I think that although I would have a hard time proving that he was stabbing his attacker seven times because he was also being attacked from behind by a woman with a knife when he didn’t even know she had a knife and probably didn’t even know what was going on in the heat of the moment.

So, yeah, he can always make — I don’t think he can make a very good deadly force, I mean that he was facing death.  I think he has a stronger argument that he was facing serious bodily injury, but it’s not a dead bang winner.  You can see a prosecutor going either way on that one.  But where the prosecutor I think had the fatal sort of flaw in his theory, DA Bragg, the district attorney was on this sort of odd law that says, “You can, essentially stop a crime from happening in an occupied dwelling or in a business or someone is exceeding their — you know it’s essentially trespassing into an area they don’t have a right to be, that would been if I were the defense attorney there, it would have been certainly what I would hang my hat on.  Now, we don’t know what ultimately persuaded the prosecutor to drop the charges, public pressure, a realization that they kind of cocked things up early on.  but you know, ultimately they made the right decision from my perspective.

Jonathan Amarilio:  You said that New York’s law is a little odd.  You also said earlier that one of the things that was uniform throughout the states was a sense of proportionality, but here Alba wasn’t meeting his attacker with a proportionate amount of force.  How common is that New York law throughout the states?

Markus Funk:  I mean the New York Work law, the law that you can use deadly force to stop a forcible felony or rape or in other words, things are not necessarily going to result in death that you can stop, burglaries and robberies, those are pretty common.  In other words, they have serve add-ons.  You know, you can use deadly force to protect your life or avoid being seriously injured or to stop and then they insert a list of specific crimes that are viewed as being kidnapping as another one or arson that is sort of aggravated.  Those are fairly common and again, I mean one of the things that’s a notable I think in this whole conversation about self-defense is that in all of the media reporting on these cases, you would come to the conclusion and if you ever have a sit down with people just at a cocktail party and asked them what do you think about American self-defense, well you’re going to hear, “Ah, it’s the wild west” and you can watch whether it’s Fox or MSNBC or CNN, you’ll have commentators talk about how we in America have this crazy self-defense law that allows deadly force, willy-nilly, it’s the Wild West.  It’s really unregulated and barbaric and that is just wrong and here’s why, everything else I’ve said, “Hey, this is an opinion.  You could have two different views on it.”  It’s factually incorrect because for example, we talked about stand-your-ground laws that are existent in the majority of American states.  The same standard ground laws exist in countries that are culturally, that are legally super diverse such as Japan, France, Germany, England, Indonesia, Ghana, Sweden.  All of those countries have stand-your-ground laws.  We have the requirement that we talked about earlier that you have to have an objectively reasonable belief that you’re being attacked.

Well in England, you don’t have to have that.  You just have to subjectively and honestly believe you’re being attacked and you can use deadly force.  So, let’s say Bernie Goetz case, good example.  Let’s say I’m a kind of a fearful not particularly imposing guy —

(00:25:00)

— whose just sitting around and all of a sudden some guys come up to me and ask me for money.  Well, if it was the three of us we say either here’s some money or know or whatever but we wouldn’t necessarily feel like we’re being exposed to a deadly attack.  In Goetz’s case, if the Goetz case happened in the U.K. or in England I’d rather, if he could persuade a jury that he honestly believed these guys were about to attack him and kill him, he would have had a complete defense.  So, we in the U.S. which is a really high burden to overcome, right?  If you want to claim self-defense, the prosecutor has to disprove these elements but ultimately, the proof has to be that you reasonably believed and subjectively also believe like I really believed it plus it was a reasonable belief that I was about to be killed.  So if you look at the Jose Alba case, if the Jose Alba case happened, if it went to trial, the whole debate would be about whether Jose Alba’s belief that he was being attacked and that he was about to be killed was reasonable and you get into the difference in size or you get into what the girlfriend said about like how her boyfriend is going to kick his ass or all that kind of stuff would come in.  If this happened in the U.K. or rather in England, the only question would be that Alba honestly believed he was about to be killed or seriously injured.  If the answer is yes, complete defense, right?

Germany, another country that a lot of people study and again, there’s this sort of we have a bit of a and I say this as maybe you can tell from my slightly nasal accent, I grew up in Germany until I was 18 and I’m a German-American dual national but in Germany, you can use deadly force to protect property, but you can’t do that, no state in America says purely to protect property, right?  So if I have a Macintosh computer or IBM or whatever sitting at my desk and I have two broken legs and someone breaks in the house, says screw you I’m taking this.  I’m going to give this to my buddies, takes it and runs off the door and I have a shotgun in my hand.  No way in America would they say you can shoot the guy in the back as he’s running out of the house in order to get your property back, or if this happened in the public areas even more clear.  I mean, there’s always a castle doctrine arguments but if you’re just outside and someone steals your stuff, you’re just out of luck, right?  In Germany on the other hand, you can use deadly force to protect property interests and it has to as long as it’s not trivial, right?  As long as it is a legally protected non-trivial property interest, you can use deadly force if it’s necessary to protect that interest.

The paradigm case, one that’s this couldn’t happen this way anymore but the paradigm case is an old case where farmer, old man, with the shotgun in his dog was walking and saw a bunch of kids stealing his fruit from his tree and he yelled at them and they’d all hopped down and one of the kids carried on his shoulder a bag of the fruit like he didn’t drop the fruit on the ground.  He ran away with it.  The old man, the old farmer, takes a shotgun, shoots the kid in the back, kills the kid and the Supreme Court says, “Well, it’s too bad but you know we can never let the wrong triumph over the right.”  So we’re not going to get in the business of saying proportionality and how much property and the kids shouldn’t have stolen the stuff.  Had he not stolen it, he wouldn’t have gotten shot.  The only way for the farmer to get his belongings back, his fruit back, was to shoot the kid and so that’s the result, right?  The farmer was completely justified.

Jonathan Amarilio:  That was in Germany?

Markus Funk:  That was in Germany.  Now, that case couldn’t happen in the same 1930s.

Jonathan Amarilio:  They had interesting opinions about who —

Markus Funk:  Yeah.  They had a lot of evil viewpoints emerging and frankly historically, you know, I mean the German scholarship is amazing about these topics but what they post-war you know, and they even — I mean it’s funny, when you read the opinion, they have these famous commentators, famous German professors who are like essentially saying, “Yeah, yeah, this would just be the way people think in these wimpy days that you should like criminals get away with it, you know, but robust aside he needs to fight criminality and therefore again the right need never yield to the wrong.  Now, obviously in Germany, the wrong triumphed for a long time but what ultimately happened after the war is they introduced what are called social-ethical limitations and they said, “Hey, this is a little crazy what we’re doing here” because the old law was actually they had certain professors who said, “Hey, if someone steals a matchstick and the only way you can get it back is shooting the person then hey, shouldn’t have stolen that matchstick.”  Eventually, the majority view as they refer to it and Germany came around to an understanding that that’s just a little bit harsh and that there have to be some limitations but you can still to this day use deadly force to protect property.  So I mean my point is just by these explicit examples that this sense we have in the U.S. that we have these crazy laws and that the civilized folks over in Sweden and Germany and France and England that they would not allow this type of thing to happen, right?  It is totally wrong.  I mean it’s as simple as that.  I have yet to find a country with more restrictive self-defense laws than United States.

(00:30:03)

There are other countries that have similarly restrictive laws, but I can’t think of a country that has more restrictive laws.  Now, that’s not to say, this is obviously the big elephant in the room which is guns, right?  I mean in America, we have the ability to use deadly force in a way that they don’t have in a lot of the countries.

Jonathan Amarilio:  Right.

Markus Funk:  And so, you know, the ability to use deadly force is heightened and so we have some cases that are the headline grabbers we talked about, but the law, America’s law is actually very — I mean at worst you could say about it it’s mainstream, the best you can say about is it’s actually very restrictive.

Jonathan Amarilio:  And I want to go there.  We got to take a quick break.  We’ll be right back.

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Jonathan Amarilio:  And we’re back.  So Marcus, we were just talking about what you view as a misconception about American law’s self-defense that the world sees us essentially as having a cowboy culture for lack of a better term where you can shoot someone dead in the street at high noon because they insulted you and you were explaining that a lot of other countries actually have much more lax self-defense laws especially in Western Europe which I think would surprise a lot of our listeners.  Then, you’ve mentioned and that’s exactly where I wanted to go with it what’s the difference between those countries and this country in terms of why do we seem to have so many more instances of high publicity cases involving claims of self-defense?  Like what makes America exceptional in this conversation, and you identify that as guns.

Jennifer Byrne:  Or are we —

Jonathan Amarilio:  Or are we, yeah, but you identified the problem as guns.  So, is that’s the big problem when people exercise their right to self-defense in England, in Germany, in Sweden?  They’re not doing it with a firearm.

Markus Funk:  Yeah.  I mean look there’s some interesting statistics about violent crime in the United States and violent crime in Europe.  How?  For example, burglaries are much more likely — the burglars much more likely to kill the occupant of a house in let’s say Germany or England than in the United States in part because people are afraid of people having guns so they try to only break in when people aren’t around.  Whereas in England and Germany, we see many more intrusions into the dwellings when people are in the house just because they figure well, we’re for big guys and we’ll be able to subdue the older people in the house.  That kind of stereotypical case.  So, there are all sorts of interesting statistics.  I think part of it is and I wish I could speak a whole bunch of languages and follow the media and a bunch of different countries.  I tend to follow the media in Germany and in England and in both of those places, I mean self-defense laws, everyone has an opinion about self-defense, right?  People may not have a strong opinion about intellectual property laws or any number of other legal provisions that we deal with every day as lawyers.  Self-defense, it doesn’t matter what level of education you have, you’re going to have some strong opinions about whether certain case self-defense should or shouldn’t be authorized.  And I think it’s because, and I refer to it in the book as the ancient right, which is what the philosopher’s called it.

It is sort of, some people call it the first civil right, right?  The right to live and the right to defend your life is the first civil right we have as people.  And so, I think you’ll see in Germany, there are super high-profile cases about self-defense where people claim self-defense and there’s a big national debate over whether it should be justified.  In England, there was a recent case involving a constable police officer, female police officer who basically beat a former professional football player to death and I don’t think anyone argues that it was objectively reasonable for her to do that, but she again remembered we’re in England where it’s just it — honestly believe it, she persuaded or was trying to persuade the fact-finder that she honestly believe this footballer when he was laying on the ground was still a threat to her.  Almost a Rodney King type situation and there are also elements of race in that case that have gone more media focus to it.  You know, I think self-defense cases no matter where you are in the local media draw a tremendous amount of attention.

(00:35:05)

I don’t think a whole lot of people were talking about any of the cases we talked about in Germany or China or Japan, but in America, they were hot-button flashpoint cases where people are outside protesting for and against.  Same thing is true, I think in Germany and England, China, Japan, everywhere where you have human beings engaging in conduct of this kind, it just brings a visceral reaction out with people.

John Amarilio: So, what you just said, brought two things to mind and I don’t know which direction to go and so I’m just going to lay them out and you decide.  One is the laws that we’ve been discussing here, do the same laws, rules, regulations apply to police officers or are they a little different?  And two, in those countries where you have a subjective standard, is the practical effect of that in some circumstances to essentially give people a license to kill because of perhaps conscious or unconscious biases or racist beliefs.  We’ve all seen the statistics where people disproportionately believe that young Black men in America are more dangerous than any other demographic.  So, if it’s a purely subjective belief system in a country like England, and you have someone who believes that despite the fact that it’s not true, could that have a disproportionate effect on populations that are discriminated against?  I know that’s not a fully-formed thought but I think you know what I’m trying to get at.

Markus Funk: Yeah, I totally know what you’re trying to say, John.  I do think it’s a fully-formed thought.  I’ll take it sort of reverse order.  I’ll start with the possibility that the conscious or unconscious biases may creep in even more than they already do.  I mean, we as a justice system don’t have the best track record in the U.S. and for that matter, most countries for being sensitive to the racial impact of some of our laws and we’re trying to do better but obviously, a lot of work needs to be done.  I think when you have a law that is purely based on an honest belief, so you could have someone who’s let’s say a racist or someone who has irrational beliefs about you name it, right?  Any group of people as long as they can persuade a jury that they honestly believed it, that’s all that matters.  So, if you happen to be super fearful — 

John Amarilio: That’s so perverse.  You have to convince the jury that you’re honestly racist in order to — 

Markus Funk: Yeah, you will.  I mean you wouldn’t do it that way, right?  You would say something like, well, you know, she grew up in a well-heeled environment and wasn’t really exposed to the urban lifestyle.  They’d be all these — 

John Amarilio: Yeah, it’s a fair argument.

Markus Funk:  But that’s what it is.  Yeah, fundamentally and you’re really doing two things, right?  You’re letting a person with racial biases actually use those racial biases as a defense and you’re speaking to the racial biases potentially and I say racial could be other biases too.

John Amarilio: Of the jury.

Markus Funk:  Of the jury to say, hey, you know, hey look, guys, we’re like this guy attacked me were all like, I really believe this guy’s going to threaten me and here’s why.  And yeah, so I think those are tremendous and I wrote about this.  I have a forthcoming article with Colombia and of European law and it talks about this.  I mean I think it is a tremendous risk.  Not that I don’t think any empirical studies have been done on this.  I don’t know how they could frankly but I think there’s a tremendous risk that that would creep in.  So, on that point, I think it’s crazy, okay.  I really do.  I mean I’ve studied these laws fairly heavily.  I’ve written particularly on England’s law quite a bit.  I think it’s a really bad idea to have a law that is purely based on someone’s subjective belief.

Now on the police side, I’ll speak in generalities because it gets really nuanced but the big question, in the U.S. basically the answer is technically no.  There are no special laws for the police versus regular citizens.  There are some different laws when it comes to when you can detain people and so forth.  In other words, the situation that will lead and escalate up to a deadly confrontation is more likely to happen with the police who can say, hey, you’ve got to stop and I’m going to talk to you and then the person says no and then they kind of escalate up a fight in a way that a normal citizen typically can’t do or won’t do.  That said, when we talk about reasonable person, the big question is always is that a reasonable person like the three of us?  Is that a reasonable police officer, right?  Because a reasonable police officer may not see death or serious bodily injury in the same way that a reasonable person does.  So, the big debate you see in jury instructions and in the motions in limine is whether someone who’s defending a police officer is allowed to say to the jury, look, you know, my client is a very sophisticated police officer.  He’s been a law officer for a long time and no reasonable police officer, rather prosecutor would said, no, reasonable police officer would believe this.  He’s been a police officer for a long time.  He should know better and the defense will say, wait a minute, it’s a reasonable person standard not only reasonable police officer standard.

So that’s where the debate is in the U.S. is largely sort of head around that fairly nuanced point.  But like in Germany, use that example again, there are different rules for police officers.

(00:40:02)

They actually have more protections and there’s all the active debate whether you’re really defending yourself or you’re defending the order, the public order.  In other words, it goes back to the case earlier.  In other words, I as a police officer, when someone attacks me, am I defending myself or am I defending like the order because he’s attacking essentially the state by attacking me as a police officer?

So those are fairly nuanced points.  I mean, when I talked earlier about the German way of looking, at these things, if you go to an American textbook, your standard issue criminal law, you know, Paul Robinson’s criminal law, you’ll find, I don’t know, 10, 15, maybe even 20 pages about self-defense.  Twenty pages if it’s got a really big font and a couple of pictures.  It’s typically really short summary.  Here are the five elements.  Here’s provocation.  Here’s Castle doctrine.  Maybe a case that’s a typical German criminal law textbooks are first of all multi-volume.  I counted that actually counted the pages.  I did like I looked at like ten of these things.  All of which cost essentially a fortune to buy any one of them and they are on average 200 to 250 pages in length just on self-defense law like about the same amount of pages on everything else but they analyze every aspect of it, the moral, the values, is self-defense really about defending the self or the state or is it a hybrid.  That’s the current thinking, it’s a hybrid.  But until 30 years ago it was all about defending the state.

So when I was defending myself from an assault, I was really defending the legal order more than myself as Markus, myself.  Now a lot of what is viewed as progressive, I think it’s the correct way to view it.  Say look that may be true that you’re protecting the state but you’re also protecting yourself.  I mean, that’s what self-defense is all about, right?  In Germany it’s called (00:41:48), Section 32 of the Criminal Code.  (00:41:50) means essentially defense when there’s need, right?  So that’s a little different than self-defense.  It’s defense when there was need, need to defend yourself.  And so it’s interesting again if you’re kind of geeking out on this in the way that I did for a long time.  It’s really fascinating to read these German professors and their different takes on it because unlike in the U.S. where we look at case law and we look at statutes.  In the German system, the views of what they call the (00:42:18) which means like the prevailing majority opinion of academics really matters.  I mean it’s like one of the big pillars of their law.  So persuading someone the other folks over to your side and then having all the textbooks sort of agree with a view that you is like a major victory in German Academia.

John Amarilio: Yeah, and when I see people citing law review articles and (00:42:40) books and briefs on this side of the pond, I usually roll my eyes.  Jen, you look like you have a question.

Jen Byrne: I do.  We’ve been talking so far about the perception, the perception of America.  In America the perception of those abroad and how they view these issues but what’s the reality look like as it compares because obviously our system of criminal laws, our laws in general are intended to either incentivize or disincentivize behavior so what’s actually happening?  What is the behavior?  How does our violent crime compared to theirs and which system of laws is working better?

Markus Funk: Well, that’s a big one, Jen.  I’ll try to do the first gloss and let smarter people come up with a true answer.  On crime statistics, one of the challenging parts, when you look at international crime statistics, is how much you can believe them.  So, if you look at China and look at their crime statistics, they’re about as believable as their COVID statistics, right?  No one ever died in China of COVID or whatever they said for a while.  They’re just not credible.  Same is true for Russia.  Same is true for North Korea.  I mean, there are a lot of places, as you can see, there’s a theme here, totalitarian dictatorships or oligarchies where the statistics are just not like legit.  So, we have no idea how our crime stats compared to theirs and they often will also exclude political essentially offenses versus a political expert common crime.

On self-defense law, I’m very comfortable with our laws.  I mean I really am.  Again, we can have a long debate about gun control and I think I’m a little — I have mixed views on that topic that probably both sides will find objectionable.  At least that’s what I found in my writing about.  You know, I guess you’re doing something right when both sides tell you you’re wrong.  But I think are self-defense laws are totally defensible.  I think even though they’re not grounded in a whole lot of very stout sort of analytical gear, I think actually the final outcome of them is not bad.  Again, what makes our crime stats crazy is our murders and violent crimes using firearms.  Statistical reality is that we are facing an epidemic of crime, and we got to figure out how to deal with it.  By international comparisons, it depends where you look.  You look at South America where we’ve got like almost no crime compared to a lot of South American countries.

(00:45:01)

John Amarilio: Well, let’s stick with apples-to-apples, Western Europe.

Markus Funk: Yeah, Western Europe.  I mean Western Europe’s crime rates are rising so we really are talking about major metropolitan areas’ crimes and major metropolitan areas and again guns can’t be excluded from the conversation, right?  I mean, it’s guns with which people are killing each other and so how do we keep the guns out of the hands of the people who are committing the crimes is the big question that’s bedeviled law enforcement and civil liberties groups and all sides of the political spectrum for a long time.  And if I had the answer, I’d love to tell you but I don’t have the answer, unfortunately.  But we’ve got to come together as a society and as a legal profession and really take a really hard look at it because just pointing fingers which is what both sides are doing, politically, is not getting anything done.

John Amarilio: So, speaking of pointing fingers, whenever self-defense comes up in high-profile cases, constantly your both sides screaming at other about what’s right and wrong using air quotes.  But you don’t often hear either side stopping to ask why they believe what they believe.  Why is this right?  Why is this wrong? And a big part of your book discusses competing values surrounding self-defense.  Talk to us a little bit about that.  What are the primary themes, the themes of values?

Markus Funk: Yeah, I mean, my sort of the rule, the punchline of the book and the dissertation in the various law review articles I’ve written on this topic is that we need a value-centric dialogue.  We need a common language with which to discuss self-defense cases.  You can’t just look at whether it’s Zimmerman or Arbery or Rittenhouse, or you name it.  You can’t just look at these cases and say, you know, thumbs up, thumbs down.  There’s a conversation.

John Amarilio: Right because they’re yelling conclusions at each other and not speaking to each other.

Markus Funk: And you can’t persuade someone. If someone just tells you it’s this.  Well, good luck trying to convince them otherwise.  Only if you have sort of a common shared language can you really kind of get anywhere.  And so kind of the seven different values that I articulate in the book and I try to kind of disentangle.  That’s why I talk about disentangling the ancient right and I’ll go through them real quick again.  I’m not trying to get focus too much but I think they’re pretty important because they also applied a lot of other laws.  And that is number one, reducing societal violence through the monopoly of force.  That’s the argument that police should be protecting people, not people.  You hear that argument once in a while like, hey, why didn’t — the police should be handling these matters.  We shouldn’t just become vigilantes and start blowing people away when they kind of look at us funny.  And so, that’s one value.  It’s not the only value.  It’s one, one of seven.

So I think in almost every case we should look at it and say, hey, how does this result either help or hurt?  What’s argued as the monopoly, Max Weber’s term, the monopoly of force?  Again, people on the right will disagree with me and say no, there is no monopoly of force of the government.  We are all born with the natural right to defend ourselves.  To that, I’d say, yeah, you’re right but listen to the other values I’ve got to talk about.  So, the monopoly of force is one value.  Another one is the presumptive right of the attacker to life.  I do think that even people who attack other people, whether they’re doing so innocently or because they have criminal Intent, we should have a presumption that they have a right to life.  Now, I say presumption.  I had a friend of mine, according to him, presumption everyone has a right to life.  I’m like, no, you don’t have a full-on all the time right to life.  It’s presumed that it’s predicated on you’re not becoming for example a deadly threat to other people, right?  But we still have to protect the attackers.  So that’s another one.

The third one, I think the most controversial one.  I think the most interesting one is equal standing, right?  That when a person commits a crime you always hear people say, look, I feel violated, I’ve never been the same, I was always scared, I felt like — even when someone cuts you off in traffic, right?  Why do we get so mad?  Like I get really mad when someone drives up on a shoulder particularly when I come back show Chicago.  When someone rides up on the shoulder and just boom, comes in front of me just because they feel like it, now it’s not going to slow me down, it causes me no tangible harm but emotionally it really pisses me off.  And the reason is that we in the public sphere all have an expectation of equal standing.  So whether you’re Bill Gates or the president United States, you don’t get to cut in line at the supermarket, right?  Even though you may get to cut in line in health care and having safer cars and everywhere else.  But in the public sphere, we expect — you know, that’s why people get so mad when they see corruption in the judicial system because we expect equal standing, everyone has a right.  And so, when I defend myself against a criminal, I am protecting my equal standing among other things.  If I’m protecting myself against a madman, or a person, or a child that person isn’t really threatening my equal standing because they don’t really know what they’re doing.  They’re kind of like unguided missile.

So, that’s number three and number, the one that everyone talks about, defender’s autonomy, right?

(00:50:00)

When I use self-defense, I am defending my autonomy, not just my body but also my right to act and do and go where I want to go.  I don’t have to avoid certain places; I can live my life freely and that’s my autonomy.  And so if you attack me, yes, you’re attacking my body.  That’s part of my autonomy but you’re also attacking other more intangible rights.

The fifth value is primacy of the legal system.  Again, the presumption that the legal system should resolve conflicts not people applies particularly in property crimes that we shouldn’t take the law into our own hands basically.

Then the sixth one sounds the same but it’s not legitimacy of the legal order.  In other words, we cannot have decisions like that German apple thief case that I talked about that in my opinion delegitimize the legal order because the one thing that any functioning criminal justice system has and has to have is by and by the people.  You can try to do it in the totalitarian way by just forcing people to do what you want to do by a threat of death and public execution but it never really works.  You have to have the buy-end.  So when we treat certain minority groups badly, we risk delegitimizing the legal order in their mind and their eyes.  When we come up with crazy results, either results that disallow self-defense what it should be allowed or vice versa, we risk delegitimizing the legal system.

So that’s another factor we should be considering and then the last one is another one that we all talk about is about deterrence, deterring the attacker.  So both specific deterrence like when you attack me and I defend myself, you’re not going to do it again.  And also, general deterrence, deterring sort of the general category of people who might commit crimes or launch attacks.

And so those seven values, I mean, there have to be others that are equally important so I’m not saying that these are the only values or the best values.  They are the best I could come up with and as far as I know, no one else has ever, other than I think there’s one other guy who talks about like two or three values, but I think each one of these is arguably implicated in every single self-defense case.  So we could talk about Arbery or we could talk about Alba and we could go through these seven and figure out, okay, of these seven, which one actually matters here and then of those, let’s say four or whatever there are that are left, we can say why should this one value be prioritized over these others.  You know, why should we allow a person to kill another person just so that because they were trespassing on their area and committing a crime there?  And then we can have a real meaningful substantive dialogue over what our laws should be.  And I think again that applies to self-defense law.  It applies to laws well above and beyond self-defense.  In other words, I think a value-based sort of dialogue about the criminal justice system generally is what we need so that we stop just speaking in platitudes and when I hear politicians talk about you know criminal law when half the time when I hear professors and practicing lawyers talk about the criminal law, it’s the sound bites.  Maybe that’s a necessity.  We don’t all have this opportunity to speak as much as we’re doing now about these topics but it’s just stressing frankly to see that.

John Amarilio: Yeah, criminal law especially tends to be passed and reactionary fits and starts.  That’s a good place for us to take a break.  We’ll be right back with Stranger and Legal Fiction.

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[Music]

John Amarilio: And we are back with Stranger than Legal Fiction, our audience knows the rules.  They’re pretty simple.  Jen and I have done some research.  We found one real law out there that’s strange and probably shouldn’t be real.  We’ve made another one up or found one that’s thankfully been repealed and we’re going quiz Markus and each other to see who can distinguish strange real fact from fiction.  You guys ready?

Markus Funk: Ready.

Jen Byrne: Are you going first?

John Amarilio: Jen, you go first.

Jen Byrne: All right, all right.  I’ll go first.  Okay.  I don’t remember who won last time, I feel like I remember Markus being successful at this game.  So we’ll see who gets this one.  So, the first is a Providence, Rhode Island law, potentially real, potentially fake.

(00:55:01)

In Providence, Rhode Island, it is illegal to sell toothpaste and a toothbrush to the same customer on a Sunday.  That’s the first proposed law.  The second law is an Illinois Law, specifically a city ordinance in Galesburg, Illinois.  There is an ordinance that prohibits “fancy bike riding” in Galesburg, Illinois.  So that means anything not standard bike riding with your hands off the handlebars, feet not on the pedals or any kind of acrobatic bike riding that you could potentially be doing.  So law in Galesburg that prohibits fancy bike riding.  Which is real and which is fake?

John Amarilio: Okay.  So, either Rhode Island likes promoting bad breath on Sundays or Galesburg has a thing against showing off on bicycles.  This is tough.  Markus, what do you think?

Markus Funk: Hey, shout out to the Galesburg Electric Open Tennis Tournament, at least back in the 80s they had it, I think Galesburg is on to something.  Fancy bike riding, I can see a public — I’ll go through my seven value case analysis here.

Jen Byrne: This is the perfect time.

Markus Funk: I mean, it’s all legitimacy issue, right?  I think, right there.

John Amarilio: It is.

Markus Funk: I mean, selling toothpaste, I mean, God knows there are some crazy laws out there.  I remember doing an article for Dave Eggers Might Magazine on all the crazy laws that we have.  I have not run into that one.  So my answer first and final will be that Galesburg, Home of the Galesburg Electric Tennis Tournament is the not fake which is to say the real law.

Jen Byrne: John, what’s your guess?

John Amarilio: You know, usually I like going the other way just to keep things spicy but I feel like I don’t think that one could be invented. Like, Jen, I know you.  Who would think that fancy bike riding — I mean that takes a lot of imagination and I don’t want to take any credit away from you so if I’m wrong about this I owe you a pre-emptive apology but I’m going to say the Galesburg one is real.

Jen Byrne: I like to think of myself as a creative person but I’m not that creative.  Actually, you’re both right.   You’re both right here.  The real law is the ordinance in Galesburg, no fancy bike riding.

John Amarilio: It’s just too strange not to be real.

Jen Byrne: I used the term fancy but it’s actually called trick riding.  That is — 

John Amarilio: Oh, that would have made it even easier.

Markus Funk: Yeah, that, yeah. That was good.

Jen Byrne: That’s why I decided to make it a little spicier.  But the funny thing is that whenever I go to come up with my quiz for this game, I’m always like going onto these — I start by going onto one of these blogs that talk about like dumblaws.com or whatever they are.  And the Providence, Rhode Island one is like on a lot of those sites.  It’s believed to be a real dumb law on the books but I forgot which —

John Amarilio: It’s just it’s an echo chamber though.  I’ve done — 

Jen Byrne: Yeah, exactly.  It’s an echo chamber.  It’s all over the internet.  I think like PolitiFact did a search and found that it appeared on those like dumblaw.com sites over 650 times as being like a purported dumb law on the books, but there’s no citation for it and to their research knowledge, it’s never actually been a law on the book so that would be the fake one and the trick riding in Galesburg is the real law there so good job to both.

Markus Funk: So that is where the French principle of douceur tude should come in.  So now I’m going to turn the table.

John Amarilio: Tell us, doctor.

Markus Funk: So, yeah.  Dr. Funk, I know, I love it too.

John Amarilio: That really is a great DJ name, by the way.

Markus Funk: Yeah, but if I ever actually introduce myself though as a doctor, really I think please check me because that’s a little much.  But douceur tude, I’m probably mispronouncing it but is this principle, it’s in European law that if a law is not enforced, it essentially loses its force.  In other words, a law like fancy bike riding if they never were in the last 50 years have never enforced it and then they find this one fancy rider that they’re trying to get and they enforce it, that essentially renders the law null and void.  In other words, use it or lose it I guess is the way I look at it.

Jen Byrne: I think you made this same reference the last time we played the game.

Markus Funk: See, that’s all I was worried about.

Jen Byrne: I think our listeners could go back to the — 

Markus Funk: This guy has like one good idea.

Jen Byrne: One trick pony here.  No, just kidding.

Markus Funk: No, I could see this — 

Jen Byrne: It applies to a lot of these though. It’s applicable.

Markus Funk: Yeah, I could see this conversation triggering such a simple idea in my mind again and again.  If I ever — I’m lucky enough to be invited for a three-peat.  I’m sure I’ll bring up douceur tude one more time but, yeah.

John Amarilio: You got a complete the trifecta.

Jen Byrne: You’re going to be like our Alec Baldwin on SNL just like coming back every fourth episode of the show now.

John Amarilio: I can’t think of a lot of jokes with that reference, but let’s move on.

(01:00:02)

All right.  And Jen, to your example, that’s why I always whenever I find one of those websites, I start there as well but then I go to the town’s ordinances.  And I searched them and more than three-quarters of the time they end up being bogus.

Jen Byrne: Jeopardized because you go deep on access and access.

John Amarilio: All right.  Option number one, in Glendale, California, it’s illegal to drive in reverse.  Option number two, in Atlanta, Georgia or anywhere in Georgia, it’s illegal to live on a boat for more than 30 days per year.  Markus, what do you think?

Markus Funk: I mean again, I don’t know if I mentioned this concept of douceur tude but I’m guessing if they don’t enforce it a whole lot because I’m guessing there are a lot of scofflaws violating it.  The living on a boat part, I mean, we used to have a boat in the harbor there in Lake Michigan and it’s almost like a vagrancy law of sorts.  I mean, there are some guys on there who essentially live on their boat.  I can see why that would be (01:01:09).

John Amarilio: I have friends who do that.  It’s one of my favorite friends.

Markus Funk: That’s sort of yeah, like Crockett and Tubbs, which one of those guys didn’t they live on a boat.  Remember Miami Vice, didn’t the main guy Don Johnson live in a boat in that show?  I don’t know.

John Amarilio: I was in like (01:01:26).  I’m sorry.

Markus Funk: You know, I’m just going to — 

Jen Byrne: Is that the one with Colin Farrell and Jamie Fagnome?  I’m just kidding.

Markus Funk: Oh, no, no, no, no.

Jen Byrne: That’s the remake.

Markus Funk: I’m just going to say no reverse because I can imagine back in the day, reverse was like real crazy and people getting into crashes and someone came up with a law that they never enforced.  Although the boat one is interesting too but I can’t see a whole state — yeah, I’ll stick with that one.  I’m probably wrong about that one.  That’s my little one throw.  My mattress is out already here to catch my fall.

John Amarilio: Jen, what do you think?

Jen Byrne: I think I’m going to have to agree with Markus because that was what my instinct was telling me it.  My instinct first told me it would be impossible for the reverse one to be a law so based on the rules of this game and how history is our guide, I’m going to go with that being the real one that no driving in reverse.

Markus Funk: And just before you give the answer, John.  I’m now going to show how tricky I am.  I’m going to reverse myself and here’s why tax collection.  I can see why on a boat because you could say, like, oh, I don’t live in this jurisdiction or I just came in from that jurisdiction.  If you’re living on a boat, I could see how you could engage in maybe some sort of clunky tax evasion.  So, just to keep it spicy as you guys said, I’m going to go for the boat.  I’m switching my vote.

John Amarilio: But you said your prior answer was final?

Markus Funk: No, I didn’t.  That was my final prior, prior (01:02:50).

John Amarilio: Yes, you did.  Yes, you did, it was — we have it on tape.

Markus Funk: Glad we don’t have it on tape.

John Amarilio: Yes, seriously.

Markus Funk: We don’t have it on tape because I don’t — 

John Amarilio: Well, I’ll tell you what, you’re last-second doubting of yourself paid off this time.  The Georgia law is real, Section 125288B8 of the State Code which specifically includes houseboats perhaps for that tax reason, Markus, although it allows citizens to apply for extensions of time.  Interestingly it doesn’t say what grounds those extensions will be granted on so I can imagine that be subject to a lot of abuse but that is the real law.  To Jen’s earlier comment, the Glendale California Law comes up on a lot of lists as being a stupid or silly law.  But when I went to Glendale’s website, I found it nowhere in their municipal ordinances.

Markus Funk: Dang, this is a good day for me.  You guys are starting my week off right.

John Amarilio: Markus, my friend, once again, it has been a real pleasure having you on the Pod.  Thank you for teaching us something about this area of the law.  I suspect we won’t see an end to the headlines about self-defense cases or claimed self-defense cases but hopefully now, we’ll all be a little bit better educated about the law underlying those stories, and our opinions one way or another will be better informed for it.  So, thank you.

Markus Funk: Thank you so much, John and Jen, always a pleasure to be with you guys.  I look forward to a possible three-peat.

John Amarilio: I also want to thank our co-host and executive producer Jen Byrne as well as Adam Lockwood on sound and everyone at the Legal Talk Network family.  Remember you can follow us and send us comments, questions, episode ideas or just trolls on Facebook, Instagram and Twitter at CBAatthebar, all one word.  Our email address is [email protected].  Please also rate us and leave us your feedback on Apple Podcast, Google Play, Stitch or Spotify, Audible, iHeart or wherever you download your podcast.  It helps get the word out.  Until next for everyone here at the CBA.  Thank you for joining us and we’ll see you soon At The Bar.

[Music]

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