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Should Excessive Force be OK in Defense?

Swampscott case poses that question.

Last October, Swampscott resident Anthony McKay was in his house when he heard a loud noise coming from outside.

McKay looked out the window and saw a man who he described as a known drug abuser trying to break into his truck. McKay exited the front door and confronted
the alleged thief. A scuffle ensued, and when police arrived McKay had the thief pinned to the ground.

The alleged thief, Christian Johnson, was arrested and charged with carrying a dangerous weapon, disorderly conduct, attempt to commit a crime, possession of a knife over 2 inches and drug possession. He was ordered held without bail due to drug dependency and previous charges.

Meanwhile, McKay also faced criminal charges. Swampscott Police issued a summons for assault and battery causing severe injury to Johnson. Apparently, Johnson suffered a broken jaw in the scuffle and police felt that the force McKay used to thwart the crime and defend himself was excessive.

The case caught the attention of Boston Herald conservative columnist Michael Graham, who penned a piece critical of the police shortly after the summons was issued against McKay.

The case also drew the attention of attorney Robert Chambers, who agreed to defend McKay in the criminal action for free. Chambers even created a blog to document his handling of the case.

Should a person be allowed to use excessive force when defending himself or herself? Should such force be permitted simply to defend property?

According to the Swampscott Police, the answer to those questions is "no."

In the days following the McKay incident, one officer was quoted as saying "citizens should leave the protection of your property and family to the police . . . period. We don't urge anybody to (fight back)," he said. "We want them to call us."

Others believe, however, that calling police should not be required, particularly when the potential harm is to the person – not property. Every citizen would seem to have a right to defend himself or herself, with whatever force is required, to prevent death or serious bodily injury. A citizen facing a personal crisis should not have to weigh the risks of facing criminal prosecution against the risks he or she will face if he or she does not mount a vigorous defense against the assailant. And, of course, sometimes calling police is not an option.

A bill presented to the Massachusetts Senate last year would clarify the right of state residents to use deadly force in certain cases. The bill provides that a person who is "an occupant of a dwelling or in any place that they have a right to be" may use deadly force if he or she reasonably believes that an assailant is going to "inflict great bodily injury or death upon themselves or upon another person who also had a right to be in the location."

Addressing the police department's suggestion that a person so threatened simply withdraw, the bill states: "There shall be no duty on a person to retreat from any place that they have a right to be."

The proposed bill, if enacted, would not appear to authorize someone to use deadly force simply to defend property. Most police believe that in those cases, the citizen should make efforts short of excessive force to prevent the robbery from occurring.

Recall that in the Swampscott case, McKay not only was trying to stop the robbery, he was trying not to be stabbed with the knife. For that reason, the bill would seem to cover a situation like that faced by McKay, even though his initial concern was for the truck – not his personal safety.

This past week, McKay got some good news. The Essex County District Attorney called his lawyer and said the charges would be dropped. Attorney Chambers stated, "It is of the utmost importance that as responsible citizens, we maintain our right to feel safe in our homes and not fear being arrested for defending yourself or your family. I am glad I could help Anthony."

Meanwhile, the Senate bill remains unsigned.

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