'Flies in the face of human nature': Stunned dissent takes Minnesota Supreme Court to task for new self-defense rule that mandates a 'duty to retreat before making threats'

Left inset: Minnesota Supreme Court Justice Paul Thissen (Minnesota Courts). Right inset: Former Minnesota Supreme Court justice Margaret Chutich (Minnesota Courts). Background: The Minnesota State Supreme Court Building on Jan. 10, 2020, in St. Paul, Minn. (AP Photo/Jim Mone).

The Minnesota Supreme Court on Wednesday added a new limit to the state’s self-defense law — prompting a stunned dissent that criticized the ruling as inimical to both humanity and law.

In the case itself, Earley Romero Blevins brandished his machete to fend off a group of three people, two men and a woman, at a train station in downtown Minneapolis. The woman and Blevins were arguing when one of the men pulled out a knife and threatened to “slit” Blevins’ throat — the threat that prompted the machete to be wielded in the first place. The other man later “aggressively walked up to Blevins,” who continued to wave his machete at the trio until they left. In the end, no one was physically harmed during the altercation.

Blevins was charged with two counts of felony second-degree assault-fear with a dangerous weapon. He claimed self-defense, an affirmative defense that admits the crime occurred but argues the crime was justified under the circumstances. Under Minnesota law , self-defense is defined as the use of “reasonable force” while “resisting or aiding another to resist an offense against the person.”

Judges in the Land of 10,000 Lakes, however, long ago created an element of self-defense law that requires a person “to retreat when reasonably possible.” Three courts in a row decided Blevins did not make the retreat necessary to claim self-defense. The state’s supreme court took the occasion to create a new rule extending the retreat exception to mere threats of force when using a “dangerous weapon.”

“The court holds that, as a matter of law, a person who is being attacked must retreat if they can reasonably do so before using even a reasonable threat of force with certain weapons in an effort to deescalate the situation or deter the attacker,” the dissent explains.

Justice Paul Thissen says the new rule created by the court is a drastic leap from the statutory text that outlines self-defense in Minnesota .

“The court holds that a person under attack must always find and exercise a reasonable opportunity to retreat before threatening force with certain weapons (but apparently not others) to deter the attacker,” the dissent begins. “Not only is the court’s decision divorced from the statutory text and unprecedented in the United States; it also flies in the face of human nature.”

Thissen sketches out a slippery-slope scenario where a woman being attacked by a man is later charged with the same crime as Blevins:

[A] woman is at a train station and a man approaches and threatens to stab her. Assume that, like Blevins, she has a reasonable opportunity to retreat by walking away. She actually, honestly, and reasonably believes that she is in danger of imminent death or great bodily harm. She has a can of pepper spray in her purse and brandishes it to ward off just such aggression; in response the man is afraid and backs off. She gets on the next train and is later arrested for assaulting the man by causing fear of bodily harm.

“Under the court’s rule, the woman is not entitled to a self-defense instruction because she had a duty to retreat before she could pull out the pepper spray,” the dissent goes on. “This result flies in the face of human nature and experience; yet it is the precise outcome demanded by the court’s holding today.”

Ruling 4-2, the majority, for its part, suggests the dissent is overstating the upshot of the Blevins ruling — and explicitly takes issue with the slippery slope scenario by pointing out that they have never been asked to define pepper spray as a “dangerous weapon.”

From the majority opinion by since-retired Justice Margaret Chutich:

In sum, we narrowly extend the judicially created duty to retreat when reasonably possible to persons who claim they were acting in self-defense when they committed the felony offense of second-degree assault-fear with a dangerous weapon, specifically a device designed as a weapon and capable of producing death or great bodily harm. Because this case does not present the issue of whether the judicially created duty to retreat when reasonably possible applies to a person who commits an assault-fear without a dangerous weapon, our holding is a narrow one limited to the specific facts of this case.

The dissent, however, insists that not only is the new rule far from narrow, but it is also a marked departure from the entire judicial corpus of self-defense within the history of the country at large.

“Today, the court takes the law of self-defense into uncharted waters,” Thissen argues. “This new rule is not only unprecedented in this state — as far as I am aware, the rule has never been adopted anywhere in the United States. Until now, the collective wisdom of judges nationwide over hundreds of years has never imposed a duty to retreat before making threats to deter an aggressor.”

The majority, on the other hand, says the dissent is off-base because the retreat exception doesn’t even come from the statute at all.

“The dissent’s contention that our analysis is ‘divorced from the statutory text’ ignores the fact that the duty to retreat when reasonably possible is not grounded in statutory language but instead is judicially created,” Chutich writes. “Our judicially created duty to retreat when reasonably possible predates the enactment of [the statute].”

According to Thissen, the majority employs some judicial sophistry to try and blur the distinction between threats and actual force.

Again, the dissent:

The court emphasizes that the duty to retreat was created by judges. But our judge-created rule imposed a duty to retreat before harming someone — or, stated differently, before “unnecessarily enter[ing] into [combat].” The court is eliding the difference between threatening someone and actually harming them. The court’s rule in this case was not created by earlier judges — it was invented today. And, as a result, the Legislature could not have incorporated the court’s new rule when it enacted the statute in 1963.

Thissen, for his part, would leave the issue of reasonable force up to jurors — but the new rule gives judges alone the power to decide.

“When one considers the duty to retreat as encouraging people to deescalate dangerous situations, requiring retreat before using force (certainly lethal force) to harm someone is justified,” the dissent concludes. “Whether it is reasonable to require in all circumstances that a person retreat if reasonably possible before using the threat of force to deescalate the situation or create better opportunities to escape is a much different question best left to the jury.”

The post ‘Flies in the face of human nature’: Stunned dissent takes Minnesota Supreme Court to task for new self-defense rule that mandates a ‘duty to retreat before making threats’ first appeared on Law & Crime .