The Second Amendment is not a waiver against being held responsible for otherwise criminal conduct.
I’ve received a lot of requests to comment on the recent arrest of a man who walked into a Springfield, MO Walmart carrying a rifle, wearing body armor, and packing over 100 rounds of ammunition (all that according to news reports, of course). The man was held by gunpoint by another patron of the store, an off-duty firefighter, and turned over to responding Springfield police a few minutes later.
The most common question sent my way is whether the patron who held the rifle-armed man at gunpoint did so unlawfully—what was the patron’s legal justification for threatening deadly force against the rifle-armed man, given that purportedly there’s no specific Missouri law against shopping at Walmart while armed with a rifle, wearing body armor, and armed with lots of ammo?
Before we get to that, a few more relevant factual details.
That man with the rifle has been identified by Springfield police as 20-year-old Dmitriy N. Andreychenko (insert Russian interference comments here), and he was arrested on a first degree charge of making terrorist threats, presumably under Missouri statute §574.115 Making a terroristic threat, first degree.
This is a class D felony under Missouri law, good for seven years in prison and a $10,000 fine. Naturally, conviction on this (or any other) felony charge would strip Mr. Andreychenko of his gun rights forever.
The full text of §574.115 can be viewed at the link above, but the relevant portion in this instance is almost certainly the following:
§574.115. Making a terrorist threat, first degree — penalty
A person commits the offense of making a terrorist threat in the first degree if such person, with the purpose of frightening ten or more people or causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation, knowingly:
(3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life.
Was Firefighter’s Threat of Deadly Force Unlawful?
In order to understand how the law is likely to apply in this case, it’s also important to understand that for legal purposes the conduct of each of the main characters involved—Andreychenko on the one hand and the firefighter on the other—are not dependent upon each other. They are, of course, related to each other—presumably, the firefighter would not have taken Andreychenko at gunpoint but for Andreychenko’s conduct in showing up to Walmart as he did—but they are not controlling on each other.
What I mean by that is this: whether the firefighter’s conduct was lawful (or unlawful) is not a function of whether Andreychenko’s conduct was lawful (or unlawful). It is not necessary that Andreychenko was committing any crime whatever in order for the firefighter taking him at gunpoint to do so lawfully.
So anyone arguing that the firefighter taking Andreychenko at gunpoint must have been unlawful because Andreychenko was “simply exercising his Second Amendment rights” is rather missing the point. The firefighter pointing a gun at Andreychenko could well be perfectly lawful even if it’s true that Andreychenko was committing no crime at all.
Reasonable Perception, Not Actual Threat, Controls
Why? Because what determines the legality of the firefighter’s threat of force is his reasonable perception of the circumstances. That is, if the firefighter reasonably perceived that Andreychenko presented an imminent threat of deadly force harm to innocents, taking him at gunpoint to neutralize that threat would be perfectly lawful. And that’s true regardless of whether Andreychenko actually presented, or intended to present, such a threat.
Further, it doesn’t matter what you, gentle reader, or I think of the reasonableness of the firefighter’s perception of Andreychenko. None of us will be the ultimate deciders of the reasonableness of the firefighter’s perception, and thus of the lawfulness of the fire fighter’s conduct.
Ultimately, the only opinion on this that matters is that of a prospective jury, the body to whom the prosecutor must sell a narrative of guilt and, in the interim, that of the prosecutor who is gauging how a jury is likely to perceive these facts.
Is it likely that a jury—fully aware that just days prior to this Missouri event a mass shooter with a rifle had walked into a Walmart in Texas and murdered a bunch of people in a mass attack—would perceive as wildly unreasonable the firefighter’s perception that Andreychenko armed with a rifle and body armor and more than a hundred rounds of ammunition while walking into a Walmart in Missouri was an imminent deadly force threat?
Especially when the fire fighter’s perception was shared by other witnesses of Andreychenko’s conduct? Especially when the consequence of the firefighter’s actions was not the death of Andreychenko, but merely holding Andreychenko at gunpoint for approximately three minutes until police arrived to take over the matter?
When balancing the dangers posed by holding Andreychenko at gunpoint for perhaps three minutes until police arrived, on the one hand, and the concern that Andreychenko could have been a copycat mass murderer, on the other hand, how would you expect a jury to weigh those two risks?
Remember, it matters not at all that the firefighter’s perception of Andreychenk was actually correct. It only matters if it was reasonable under the circumstances.
Were I a prosecutor contemplating charging that firefighter with having committed an unlawful threat of force against Andreychenko, aware of the defense argument just described that would be raised against any such charge, as well as the likely political perception of bringing such a charge under the current circumstances, the decision to not do so would be an easy one.
Second Amendment Does Not Excuse Unlawful Conduct
In addition, the fact that Andreychenko may have caused such a reasonable perception of an imminent deadly force threat while carrying a firearm does not excuse that conduct, if the conduct is otherwise unlawful. The Second Amendment is not a waiver against being held responsible for otherwise criminal conduct.
Robbing a bank is not lawful just because the robber used a gun and was “simply exercising his Second Amendment rights.” Similarly, committing a terroristic threat is not lawful just because the person doing so is armed with a rifle and claiming to be “simply exercising his Second Amendment rights.”
It may be helpful to do a thought experiment in which we strip guns out of the picture entirely. If a man had walked into a Texas Walmart carrying cans labeled “fertilizer” and “diesel fuel,” combined the two in the middle of the floor, and ignited the combination to blow up the building and kill lots of people, and then a few days later a similarly equipped man had walked into a Missouri Walmart, would it be wildly unreasonable for observers to reasonably perceive a similar outcome?
Even in the absence of a specific law against carrying fertilizer and diesel fuel into a store? Even in the absence of the second man having any actual intent to blow the second store up?
More succinctly: This Missouri Walmart case is not a “gun rights” matter, and anyone who thinks it is a “gun rights” simply hasn’t thought the matter through.
Assessing the Criminality of Andreychenko’s Conduct
What about the criminal charge of terroristic threatening brought against Andreychenko? Is it a reasonable charge under the circumstances? Is it likely he could be convicted of this charge?
I’ve heard some argue that there’s “no evidence” that Andreychenko intended to harm anyone, that he was “simply exercising his Second Amendment rights,” and that for all we know his intent was perfectly lawful. OK, let’s take a look at that.
For discussion purposes, I’ll distill the charge against Andreychenko as: “with the purpose of frightening ten or more people [he] knowingly caused a false belief or fear that . . . a condition exists involving danger to life.”
But how, you might wonder, are we supposed to know what Andreychenko’s “purpose” was, absent him confessing that intent? After all, we don’t have a brain scanning machine that can definitively tell us his intent in walking into that Walmart carrying a rifle, wearing body armor, and carrying some 100 rounds of ammunition. Doesn’t that mean there’s “reasonable doubt” that he intended to commit the crime of terroristic threatening?
Well, no. While it’s true that we don’t have a brain scanning machine to apply to Andreychenko, it’s also true that we’ve never had a brain scanning machine to apply to any criminal defendant, and yet people get convicted all the time based on their criminal intent.
And how do we determine their criminal intent absent such a brain scanning machine, at least in the absence of their own confession of their intent? We make reasonable inferences from their conduct and the circumstances. Ultimately, of course, it is a jury making that reasonable inference.
Was Andreychenko’s intent in carrying a rifle, wearing body armor, and having 100 rounds of ammo on his person to “go shopping at Walmart?” That seems unlikely, given that millions upon millions of people shop at Walmart, without feeling the need to bring a rifle, body armor, and ammunition.
Was Andreychenko’s intent in carrying a rifle, wearing body armor, and having 100 rounds of ammo on his person to “exercise his Second Amendment rights?” Really? There are over a 100 million gun owners in America, including Second Amendment absolutists like myself who believe all pre-emptive gun laws applied to law-abiding, mentally-sound American citizens to be facially unconstitutional, and who exercise our Second Amendment rights every single day, and yet have never felt the need to carry a rifle into a Walmart while wearing body armor.
But Andrew, I can hear people saying, sure, carrying a rifle into Walmart while wearing body armor may be unusual, but that doesn’t make it illegal.
I would suggest it does if such conduct is reasonably foreseeable to “cause a fear that a condition exists involving danger to life,” the feared condition being a copycat rifle-armed mass murdered in a Walmart, mere days after such an event having actually occurred, which is precisely why society creates laws such as Missouri’s terroristic threatening statute.
Remember, it doesn’t matter what Andreychenko’s intent actually was, it only matters what a jury is likely to infer that Andreychenko’s intent was.
There are places in which gearing up with a rifle and body armor and ammunition would not be reasonably expected to cause a fear of immediate danger to life. A military or police exercise. A competitive rifle match. A shooting range. One’s own home. In the presence of an active threat or natural disaster against which a rifle and body armor and plenty of ammunition would be a rational and prudent defensive action.
While shopping at Walmart? Not so much.
And if there does not appear to be a reasonable basis for gearing up with a rifle, body armor, and ammunition, it should not be surprising if observers perceive that there may be an unreasonable basis for doing so, an unlawful basis, a life-threatening basis—and that’s especially the case if a mass shooting under similar circumstances and at great loss to innocent life has just occurred.
Second Amendment: With “Friends” Like This …
Even if we were to give Andreychenko the benefit of the doubt and assume that his intent in “shopping” at Walmart armed with a rifle and wearing body armor, days after a mass shooting at another Walmart under similar circumstances, was 100% well-intentioned, defending this conduct on Second Amendment grounds is politically foolish, and catastrophically so.
Just because some conduct is lawful doesn’t mean it’s smart, and if one’s self-claimed mission is support of the Second Amendment, exercising that right in such a way that your conduct can be reasonably be expected to scare the heck out of normal people out in public—each of whom has exactly the same vote that you have—is politically idiotic.
I’ve written about this at length before, particularly with respect to the folks who used to (maybe still do?) gather at Starbucks while geared up with long guns, such as in this post from more than five years ago: Op-Ed: “Open Carry” Activists Score Yet Another Own Goal (5/21/14)
In short, anyone who is exercising their Second Amendment rights on the basis of MUAH RAHTS!!!” and in such a way that the actual and reasonably foreseeable effect is to undermine generalized political support for the Second Amendment is no genuine friend of the Second Amendment. They are, rather, engaged in self-serving, attention-grabbing behavior that is detrimental to the Second Amendment. They are no ally of the Second Amendment, and no friend of mine.
The Tenth Amendment states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Although the Tenth Amendment is explicitly intended to constrain the Federal government, in favor of the States, in our modern society it is effectively a dead Amendment, with essentially no political or legal effect whatever. Was the Tenth Amendment repealed? Nope. It’s still on the books. It is simply impotent, for the very practical reason that today’s society has chosen for it to be impotent.
The same precise fate awaits the Second Amendment if it suffers a comparable loss in generalized political support. I urge all true Second Amendment supporters to conduct themselves in a manner that increases, rather than decreases, generalized political support for our gun rights.
My advice is that you exercise your Second Amendment rights responsibly, like adults who both demand that right and accept the responsibilities that come with it, rather than as self-serving adult-children who want rights without responsibility. Because if the second path is chosen, the others in society will strip that right away, without hesitation.
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Attorney Andrew F. Branca
Law of Self Defense LLC
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