One on One: The deadly force gun bill

Flaherty, Olson
From left: Dennis Flaherty, the executive director of Minnesota Police and Peace Officers Association, and Joseph Olson, a law professor at Hamline University, debate the deadly force bill.
MPR Photo/Sarah Ashworth

The Minnesota Senate is expected to vote soon on a bill that would expand the state's "castle doctrine." Current law allows people to use deadly force if they believe they're in imminent danger while defending their dwelling.

The new bill expands the definition of a dwelling to include a home, a hotel room, tent, car or a boat. The House passed the measure last year and last week the Senate Finance Committee gave the measure the go-ahead. If it passes the full Senate, Gov. Mark Dayton says he doesn't yet know if he'll sign it into law.

Below is a transcription of a conversation that aired today on "Morning Edition." Host Cathy Wurzer sat down with Hamline University law professor Joseph Olson, who supports the bill, and Dennis Flaherty, the executive director of Minnesota Police and Peace Officers Association, who opposes it.

Cathy Wurzer: Professor, I'm going to start with you first. We have the so-called castle doctrine already in law. What would this change specifically?

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Joseph Olson: With regard to your dwelling or your home, your place of abode, it doesn't change anything. What it does is it deals largely with the situation of when you're outside your home — which is where 87 percent of all criminal assaults and murders, robberies, etc., occur. When you're out there, it says that in some cases, you will have similar protection. And the other one it does is it adds enforceable felonies. These are crimes where an essential element of the crime is violence. If somebody is committing an armed robbery, we assume that he will carry out the robbery. And he will use whatever force is necessary to carry out the robbery — and you can defend yourself.

Wurzer: Dennis, what do you not like about the proposed changes in the castle doctrine?

Dennis Flaherty: Well, Cathy, it is probably the most sweeping and unnecessary legislation that has come before the Legislature in quite some time. It goes way beyond what has been called the castle doctrine. It makes changes to who can carry guns in the state of Minnesota. This proposal, if passed, would allow permits from every state in the nation to be valid in Minnesota.

Secondly, it prevents police officers from taking into custody any firearms except in an arrest situation. But officers all over our state are going to domestic disturbances or with mentally incompetent people where there are guns involved. Right now, we will take those guns until the tempers go down, until problems are dealt with.

Wurzer: Joe Olson: This has happened in the past, obviously in the recent past, where an officer has gone into a domestic violence situation. And those are very iffy, dicey situations often times. If under this bill, the individual in question has a gun, might the officer be in danger because this individual thinks the officer is encroaching upon his or her dwelling?

Olson: No. The officer can disarm the individual. There's a Supreme Court case that allows that. This doesn't change that at all.

Wurzer: What about, though, the safety of police officers under this bill? Do you worry about that at all? Because Dennis Flaherty is worried about the safety of his officers going into potentially volatile situations with a person who might have a gun.

Olson: One: I always worry about the safety of police officers. Two: This bill doesn't change that. The police retain the same powers that they have now under exactly the same circumstances that they have now.

Wurzer: And Sen. [Gretchen] Hoffman, I believe, Dennis, is working on some new language that would explicitly prohibit the use of deadly force against police under this bill.

Flaherty: Cathy, I don't know about that. Sen. Hoffman refused to meet with law enforcement representatives before the bill was going to be heard in the Senate last year. But I can tell you that officer safety is the primary concern that we have about this bill.

First of all, by expanding the definition of the home to include yards, garages, decks, boats, tents, is very troublesome. But the bill says whoever enters upon that property by force or stealth. Well, every day in the state of Minnesota, we have peace officers that are entering on somebody's property — often times by stealth so that we have the element of surprise. We are extremely fearful that with this shoot-first-ask-questions-later mentality that this bill establishes, that we will have officers that will not only be in harm's way, but in fact will be injured or perhaps killed.

And I need to point out that there has never been a case in the state of Minnesota where anyone who used force to protect themselves in their home has ever been prosecuted.

Wurzer: Professor Olson: Current law says if someone's breaking into my house, I could if I feel I'm being threatened, I'm supposed to run away and call the police before I shoot. Is that right?

Olson: In your home, there is no requirement of retreat in Minnesota, and there never has been.

Wurzer: If I'm in my car, or if I'm somewhere else, I'm supposed to retreat first, or call police and then shoot?

Olson: If it's possible for you to retreat with complete safety.

Wurzer: Under this new provision, I could shoot first and then ask questions later?

Olson: No. You can only shoot if you reasonably believe you face an imminent danger of death or serious harm. You cannot shoot just because they are there. You cannot shoot just because you want to. You have to meet the specific requirements of the law. But the one thing you don't have to do is turn your back on a deadly threat and try and outrun a speeding bullet.

Wurzer: Dennis Flaherty: Could a reasonable person think, because this is probably the scariest moment of their life, if some criminal is pointing a gun at them, that reasonably could I feel comfortable in shooting that person? I would feel like I'm under threat.

Flaherty: You could do that now, Cathy, and you'll be able to do that under the new law. That is not really the issue here. The issue is that it changes the standard to include property. So now if I see someone out in my backyard I may be concerned and frightened and so I shoot them. The prosecutor is going to have to prove what was in this person's mind at the time. I think it goes way, way too far.

Wurzer: And what happens, Joe Olson, under this bill if a criminal shoots a police officer or somebody else and then argues "I felt I was threatened."

Olson: They do that all the time. And they always lose because the jury doesn't believe them.

Wurzer: I have to ask you something that Dennis brought up about the permitting process. This bill would allow folks from other states that may have more lax permitting processes to pack their guns in Minnesota.

Olson: There are two answers to that. One: We do that with driver's licenses. We let people drive 3,000-, 5,000-, 50,000-pound weapons down the highway. Two: If you look at the bill, the bill says this: If we have someone in Minnesota with a Texas permit who is acting up and would be denied a permit under Minnesota [law], his authority from Texas is not recognized in Minnesota.

Flaherty: The fact is, Cathy, that there are 15 other states with same or similar standards for being issued a permit to carry. The rest of them do not require backgrounds like we do and they do not require any kind of training whatsoever. These people, from all those other states, now can carry a gun legally. I don't think that's the kind of Minnesota that the people really want.

Wurzer: All right. Thanks, gentlemen, for being in studio with me. I appreciate it.

MPR online producer Nathaniel Minor transcribed and edited this interview.