There have been a couple of news items recently about an ongoing effort to rewrite the Delaware criminal code, led by Chief Justice Strine and a law professor from U. Penn. You can read the preliminary report to the Delaware General Assembly's Criminal Justice Improvement Committee here:
http://legis.delaware.gov/docs/default- ... f?sfvrsn=0
Whatever you may think of the rest of the effort, this is something the RKBA community needs to be watching, in my view. The provisions for CCDW licensing, the use of deadly force in self-defense or defense of others, the castle doctrine, etc. are in the criminal code, so a rewrite can sneak in significant changes without being noticed, or even intended. The bright lawyers at NRA-ILA need to look at this.
The proposed re-draft takes the CCDW licensing and reciprocity provisions out, apparently with the intent that the licensing scheme goes to a different part of the code. (If those provisions don't get reinserted somewhere else, then the rewrite is a complete ban on concealed carry, which is obviously a problem.)
A couple more items of specific concern:
1. The biggest one is the change in justification for the use of deadly force. I'll copy and paste the relevant code sections below, but under current law, you are justified in using deadly force if you believe it's necessary to prevent death or certain serious crimes to you, unless you know you can retreat in complete safety (subject to the castle doctrine). Under the new one, you're only justified if deadly force is necessary -- not if you believe it is -- and you have a duty to retreat if retreat can secure complete safety -- not if you know retreat can secure complete safety. The change to the requirements of mental state is potentially huge.
Current statute: 11 Del. C. sec. 464(c): "The use of deadly force is justifiable under this section if the defendant believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat." There's an exception in 464(e)(2): Deadly force isn't justified if "the defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that: a. The defendant is not obliged to retreat in or from the defendant's dwelling; and b. The defendant is not obliged to retreat in or from the defendant's place of work, unless the defendant was the initial aggressor."
Under the rewrite (new proposed section 306(c)):
(c) Use of Deadly Force.
(1) Justified in Limited Circumstances. The use of deadly force is justified under this Section only if it is necessary to protect the person or another person against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat of force.
(2) Retreat, Surrendering Possession, or Complying with Aggressor’s Demands.
(A) Generally. The use of deadly force is not justified if the necessity of using deadly force can be avoided, thereby securing the complete safety of any person in danger, by:
(i) retreating; or
(ii) surrendering possession of a thing to a person asserting a claim of right to the thing; or
(iii) complying with a demand that the defendant abstain from performing an act that the defendant is not legally obligated to perform.
(B) Exceptions.
(i) A person is not obligated to retreat in or from his or her dwelling or, if the person acts to protect another person, that person’s dwelling.
(ii) A person is not obligated to retreat in or from his or her place of work or, if the person acts to protect another person, that person’s place of work, unless the person was the initial aggressor.
2. The current law has specific provisions around justification of deadly force in your own dwelling. (11 Del. C. sec. 469). Those are eliminated in favor of a general provision about "mistake as to justification" (new proposed section 409). This is also a partial give-back on point 1 above. Under the proposed new standard, a person is "excused" for an "offense" if "under the circumstances as the person believes them to be, his or her conduct satisfies the requirements of a justification defense defined in Chapter 300, and (2) the person’s mistake is: (A) reasonable, or (B) less culpable than the culpability required by: (i) the result element of the offense charged; or (ii) if no result element exists, the circumstance element most central to the offense charged." One big difference between a "justification" and an "excuse" is that the prosecution has to disprove a "justification" beyond reasonable doubt, but the defendant has to prove "excuse" by a preponderance of the evidence. I don't do criminal practice, but maybe wiser heads will tell me this is a net positive change. I sure don't like the shift of terminology from "justified" to "excused," though, and it sounds like more hydraulic pressure against decent people defending themselves.
3. New proposed section 5103 ("Carrying a Concealed Deadly Weapon or Dangerous Instrument") is also a significant change. Current section 1442 criminalizes carrying a concealed deadly weapon "upon or about the person without a license to do so as provided by section 1441," and expressly provides that possession of an expired license is a defense for a limited period of time. The new proposed section 5103 removes the reference to a license in favor of "Except as authorized by law." That is potentially a very big deal -- "it's not prohibited and I have a license means I can" turns into "if I'm not authorized by law, then I'm committing a crime if I do."
4. New section 5103 also shifts the offense from carrying concealed "upon or about the person" to carrying concealed and "available and accessible for the person's immediate use." Not sure which way that winds up cutting, ultimately. Does the requirement of "immediate use" take us in the direction of some western states, where you can carry a concealed pistol without a license if it's "unloaded," but "unloaded" means no round in the chamber and two mechanical steps to fire (e.g., rack slide and pull trigger), so that Israeli carry is fine?
5. New section 5109(e) also defines a "firearm" to mean "any weapon from which a bullet, projectile or other object may be discharged by force of combustion, explosive, gas and/or mechanical means, regardless of whether the weapon is loaded or stored in multiple pieces. The term does not include a B.B. gun." There is a footnote pointing out that this definition means a bow is a "firearm," and includes arguments for and against doing that. The note doesn't point out that if a bow is a "firearm," then we're now going to be requiring background checks for the sale or transfer of bows.
6. And of course, the new draft keeps (at Section 5102(b)(4)) the current prohibition (in 11 Del. C. sec. 1445) on selling, buying or possessing ("except as authorized by law," whatever that means, again), "a weapon that, by compressed air or spring, projects a pellet, slug or bullet larger than a B.B. shot, or their pellets, slugs or bullets." Right. So electric AirSofts are OK? "Larger" than a B.B. shot in diameter by a few thousandths of an inch, like .177 air rifle pellets? Heavier than B.B. shot (made of what)?
All this serves to tell me that all change is bad, but your mileage may vary.
http://legis.delaware.gov/docs/default- ... f?sfvrsn=0
Whatever you may think of the rest of the effort, this is something the RKBA community needs to be watching, in my view. The provisions for CCDW licensing, the use of deadly force in self-defense or defense of others, the castle doctrine, etc. are in the criminal code, so a rewrite can sneak in significant changes without being noticed, or even intended. The bright lawyers at NRA-ILA need to look at this.
The proposed re-draft takes the CCDW licensing and reciprocity provisions out, apparently with the intent that the licensing scheme goes to a different part of the code. (If those provisions don't get reinserted somewhere else, then the rewrite is a complete ban on concealed carry, which is obviously a problem.)
A couple more items of specific concern:
1. The biggest one is the change in justification for the use of deadly force. I'll copy and paste the relevant code sections below, but under current law, you are justified in using deadly force if you believe it's necessary to prevent death or certain serious crimes to you, unless you know you can retreat in complete safety (subject to the castle doctrine). Under the new one, you're only justified if deadly force is necessary -- not if you believe it is -- and you have a duty to retreat if retreat can secure complete safety -- not if you know retreat can secure complete safety. The change to the requirements of mental state is potentially huge.
Current statute: 11 Del. C. sec. 464(c): "The use of deadly force is justifiable under this section if the defendant believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat." There's an exception in 464(e)(2): Deadly force isn't justified if "the defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that: a. The defendant is not obliged to retreat in or from the defendant's dwelling; and b. The defendant is not obliged to retreat in or from the defendant's place of work, unless the defendant was the initial aggressor."
Under the rewrite (new proposed section 306(c)):
(c) Use of Deadly Force.
(1) Justified in Limited Circumstances. The use of deadly force is justified under this Section only if it is necessary to protect the person or another person against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat of force.
(2) Retreat, Surrendering Possession, or Complying with Aggressor’s Demands.
(A) Generally. The use of deadly force is not justified if the necessity of using deadly force can be avoided, thereby securing the complete safety of any person in danger, by:
(i) retreating; or
(ii) surrendering possession of a thing to a person asserting a claim of right to the thing; or
(iii) complying with a demand that the defendant abstain from performing an act that the defendant is not legally obligated to perform.
(B) Exceptions.
(i) A person is not obligated to retreat in or from his or her dwelling or, if the person acts to protect another person, that person’s dwelling.
(ii) A person is not obligated to retreat in or from his or her place of work or, if the person acts to protect another person, that person’s place of work, unless the person was the initial aggressor.
2. The current law has specific provisions around justification of deadly force in your own dwelling. (11 Del. C. sec. 469). Those are eliminated in favor of a general provision about "mistake as to justification" (new proposed section 409). This is also a partial give-back on point 1 above. Under the proposed new standard, a person is "excused" for an "offense" if "under the circumstances as the person believes them to be, his or her conduct satisfies the requirements of a justification defense defined in Chapter 300, and (2) the person’s mistake is: (A) reasonable, or (B) less culpable than the culpability required by: (i) the result element of the offense charged; or (ii) if no result element exists, the circumstance element most central to the offense charged." One big difference between a "justification" and an "excuse" is that the prosecution has to disprove a "justification" beyond reasonable doubt, but the defendant has to prove "excuse" by a preponderance of the evidence. I don't do criminal practice, but maybe wiser heads will tell me this is a net positive change. I sure don't like the shift of terminology from "justified" to "excused," though, and it sounds like more hydraulic pressure against decent people defending themselves.
3. New proposed section 5103 ("Carrying a Concealed Deadly Weapon or Dangerous Instrument") is also a significant change. Current section 1442 criminalizes carrying a concealed deadly weapon "upon or about the person without a license to do so as provided by section 1441," and expressly provides that possession of an expired license is a defense for a limited period of time. The new proposed section 5103 removes the reference to a license in favor of "Except as authorized by law." That is potentially a very big deal -- "it's not prohibited and I have a license means I can" turns into "if I'm not authorized by law, then I'm committing a crime if I do."
4. New section 5103 also shifts the offense from carrying concealed "upon or about the person" to carrying concealed and "available and accessible for the person's immediate use." Not sure which way that winds up cutting, ultimately. Does the requirement of "immediate use" take us in the direction of some western states, where you can carry a concealed pistol without a license if it's "unloaded," but "unloaded" means no round in the chamber and two mechanical steps to fire (e.g., rack slide and pull trigger), so that Israeli carry is fine?
5. New section 5109(e) also defines a "firearm" to mean "any weapon from which a bullet, projectile or other object may be discharged by force of combustion, explosive, gas and/or mechanical means, regardless of whether the weapon is loaded or stored in multiple pieces. The term does not include a B.B. gun." There is a footnote pointing out that this definition means a bow is a "firearm," and includes arguments for and against doing that. The note doesn't point out that if a bow is a "firearm," then we're now going to be requiring background checks for the sale or transfer of bows.
6. And of course, the new draft keeps (at Section 5102(b)(4)) the current prohibition (in 11 Del. C. sec. 1445) on selling, buying or possessing ("except as authorized by law," whatever that means, again), "a weapon that, by compressed air or spring, projects a pellet, slug or bullet larger than a B.B. shot, or their pellets, slugs or bullets." Right. So electric AirSofts are OK? "Larger" than a B.B. shot in diameter by a few thousandths of an inch, like .177 air rifle pellets? Heavier than B.B. shot (made of what)?
All this serves to tell me that all change is bad, but your mileage may vary.