First Right Is the Right to Defend Ourselves

As I write, 49 bodies have now been removed from the Pulse nightclub in Orlando, Fla.

Fifty-three more patrons suffered wounds, in the deadliest shooting rampage perpetrated in modern American history. The gunman, Omar Mateen, took a timeout during his shooting spree to call 911 and profess allegiance to the Islamic State.

According to the Wall Street Journal, the shooter first opened fire outside the nightclub, exchanged fire with a uniformed Orlando police officer working security for the nightclub, and entered the club where he began his mass murder spree. By the time additional officers arrived, it was too late for 102 of his victims.


At the time of Mateen's entry, there were 300 unarmed patrons in the club.

The Pulse was a "gun free zone" under Florida law. A number of things are evident from the early news accounts:

1. Mateen ignored the "gun free zone" signs on the doors.

2. The Pulse's "gun free zone" status did not prevent gun violence or save lives. The fact that patrons were unarmed facilitated the slaughter.

3. The fact that an armed officer was working security outside the club did not protect the patrons. The armed terrorist was in the club before the officer could stop him.

4. The police officers responding to the call for help arrived too late to prevent 102 patrons from being shot.

5. Stricter gun laws would probably not have prevented the massacre. France had stricter gun laws, yet the Paris shooters still found a way to get guns.

If Mateen had been unable to acquire a semi-automatic rifle, could he not have achieved the same result using one or more semi-automatic pistols? Or a hand grenades? Is there no black market for these things?

6. Attorney General Loretta Lynch's dicta that the “most effective” weapon at America’s disposal against Islamic terrorism is “love” is absurd. Six million Jews found prayer inadequate against Hitler's Holocaust.

But what if some of the patrons at the Pulse had been armed? What if only 1 percent had been carrying concealed? What if one of them was behind Mateen as he started to shoot? What if one of them was off to his side? What if one was in another portion of the building, and had time to take cover and return fire?

Of course, it is all speculation. But I am guessing that while Mateen would have killed and wounded a number of those present, he would not have had enough time to kill and wound 102. And if 2 percent of the patrons were carrying concealed, he would have had to face six people able to defend themselves and others about them.

Admittedly, they could have hit other patrons by mistake. The police could have, too. Admitting that, I doubt that 49 people would be dead and 53 wounded had six patrons been carrying.

Experience teaches that gun free zones have proved to be superb killing fields for the Dylan Klebolds and radical Islamic terrorists who believe their religion justifies/mandates slaughter of unarmed civilians -- women, children, etc.

There is a partial list of Islamist terrorists attacks since 1980, lest you have forgotten, at                 en.wikipedia.org/wiki/List_of_Islamist_terrorist_attacks.

The simple fact is, the terrorists are winning. There are not (and never can be) enough police in America to stop the San Bernardinos and Orlandos. There will never be enough police to protect every bar, nightclub, school, amusement park, airport, bus station, wedding, funeral, and every other soft target in the U.S. And when the government is unable (or unwilling) to protect us, we have the most basic of all rights -- the right to defend ourselves.

For many years, when I was a judge, I favored gun control. Wanton Islamic terror has caused me to reconsider. Experience (e.g., Ft. Hood, San Bernardino, Paris, Orlando) teaches that the only way to stop the terrorism is via concealed carry by screened and trained citizens.

So, do we have more to fear from citizens permitted to carry concealed than from terrorists? See my next op ed.


Posted July 1, 2016, QCOnline.com

Copyright 2016
John Donald O'Shea

Death Penalty: What of Innocent Victim's Right to Life?

The U.S. Conference of Catholic Bishops, writing of "Human Life and Dignity," tells us, "As a gift from God, every human life is sacred from conception to natural death. The life and dignity of every person must be respected and protected at every stage and in every condition. The right to life is the first and most fundamental principle of human rights."

I do not quarrel with the proposition that the right to life is the most fundamental principle of human rights. But when I am told that life is sacred or precious, the lawyer within me asks, what does that mean?

During his recent speech to Congress, Pope Francis called for global abolition of the death penalty:

"Every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes."

But if  that is so, what justification did the police at Oregon's Umpqua Community College have in engaging in a shootout with the gunman who had just murdered 10 people there, and who would have murdered far more had the police not intervened?

Wasn't the gunman's life sacred before, after and during his murder spree? Wasn't he "endowed with an inalienable dignity" during commission of each murder? By what right did police interfere? Would it not have sufficed to remind the gunman he was in a Gun-Free Zone? Shouldn't the officers have used non-lethal force to take him into custody?

A 26-year-old man has a life expectancy of 51.4 years. Unless paroled, at $50K per year, his "rehabilitation" will cost society $1.3 million.

Consider the following scenarios:

-- Gunman X walks across the campus at Augustana College, shooting and killing everybody in sight. When Rock Island Police officers arrive, the gunman shoots at them. Can the officers use deadly force to stop the killing spree? Can an officer use deadly force to prevent himself from being shot? Or does the gunman's "inalienable dignity" and the fact that his life is "sacred" mean that his person is inviolate from the officer's use of deadly force?

-- The Iranians finally develop a nuclear weapon. They are intent on wiping Israel off the map. Each Iranian's life is "sacred," and each Iranian is "endowed with an inalienable dignity." Can Israel launch a pre-emptive strike and kill Iranians to prevent its own extermination, or must Israel accept nuclear destruction, and await the eventual "rehabilitation" of the Iranian state and its people?

-- Would the Jewish people have been justified in using deadly force to assassinate Hitler and other Nazi leaders prosecuting the Holocaust? Were Hitler, Himmler and others all endowed with an "inalienable dignity?" Were England, the USSR and the USA wrong to make war on Hitler and his allies?

I can accept the proposition that every person is born with an "inalienable dignity." I also can accept the proposition that no man or government can take away an innocent man's "inalienable dignity." And I accept the proposition that "the right to life is the first and most fundamental principle of human rights." But if human life is truly sacred, and worthy of protection, then there must be some mechanism or mechanisms to protect it.

As the Jews were being exterminated during the Holocaust learned, prayers and papal teachings did not do the job.

I would, therefore, posit a fourth proposition: "A man himself can forfeit his own dignity and his right to life by taking or making war on innocent life."

A man who employs deadly force against the innocent, invites use of deadly force against him. That can be either force used in self defense or in defense of others. Without the right of self-defense and the right to defend others, the right to life of the innocent is illusory, and is alienable at the whim of every prospective murderer, school shooter, or would-be Hitler or Stalin.

I have never been in favor of applying the death penalty in all cases of murder; but in some cases, like St. Thomas Aquinas, I believe it is justified and indeed necessary and proportionate.

Assume that the Umpqua murderer, had been taken alive, convicted and imprisoned for "rehabilitative" purposes. If he thereafter murdered two prison guards in an effort to escape and attack the next community college, the death penalty to me would seem reasonable, necessary and proportionate.

The death penalty should remain disfavored, but available.

If a home owner or a police officer can use deadly force to defend his own life, based on an instantaneous judgment, without a trial and appeals of any sort, it seems bizarre that a state cannot impose the death penalty after a fair jury trial and the innumerable appeals that follow -- if the sentence is reasonable, necessary and proportionate.

If a nation can enter a "just war' and kill millions without anything in the nature of a trial, why can it not execute a murder after an fair trial and appeals which demonstrate the fairness, necessity and proportionality of the sentence?

And for those who don't know, death sentences are reviewed with the strictest scrutiny known to the law.




























Posted: Tuesday, October 13, 2015 11:00 pm QCOnline.com
By John Donald O'Shea

Copyright 2015
John Donald O'Shea

Israeli Response Purely a Matter of Self-Defense

How should Israel respond when Hamas fires 2,100 rockets into Israel from Gaza? How should Israel react when Hamas refuses cease-fire offers? Is Israel justified in bombing or shelling the rocket launchers? Rocket launching sites?

Buildings where the rockets are stored?

According to the Israeli Defense Force Blog, "Over 5 million Israelis are currently living under threat of rocket attacks. Even worse, "More than half a million Israelis have less than 60 seconds to find shelter after a rocket is launched from Gaza into Israel. Most rockets launched from Gaza into Israel are capable of reaching Israel's biggest cities, including Tel Aviv and Jerusalem."

But what if Hamas sets up its rocket launchers next to hospitals? Stores its rocket inventories in schools? What if it places and fires its rockets from densely populated civilian areas? From among women and children? Is Israel barred from retaliating because women and children are likely to be killed?

Two recent reports from the U.N. Relief and Works Agency (UNRWA) -- hardly a pro-Israeli organization -- should make clear to every American the Hamas propaganda tactic of using Palestinian women and children as human shields.

On July 17, its site reported under the heading "Agency demands full respect for the sanctity of its premises in Gaza":

"Yesterday, in the course of the regular inspection of its premises, UNRWA discovered approximately 20 rockets hidden in a vacant school in the Gaza Strip. UNRWA strongly condemns the group or groups responsible for placing the weapons in one of its installations. This is a flagrant violation of the inviolability of its premises under international law. This incident, which is the first (U.N. documented) of its kind in Gaza, endangered civilians including staff and put at risk UNRWA's vital mission to assist and protect Palestine refugees in Gaza. ...

"Palestinian civilians in Gaza rely on UNRWA to provide humanitarian assistance and shelter. At all times, and especially during escalations of violence, the sanctity and integrity of UN installations must be respected."

Then, on July 22, 2 UNRWA reported in "UNRWA condemns placement of rockets, for a second time, in one of its schools. Agency demands full respect for the sanctity of its premises in Gaza":

"Today, in the course of the regular inspection of its premises, UNRWA discovered rockets hidden in a vacant school in the Gaza Strip. As soon as the rockets were discovered, UNRWA staff were withdrawn from the premises, and so we are unable to confirm the precise number of rockets.

The school is situated between two other UNRWA schools that currently each accommodate 1,500 internally displaced persons."

In a July 24 op-ed in the Wall Street Journal, retired U.S. Marine Corps Commandant, Gen. James T. Conway wrote, "Earlier this month Hamas spokesman Sami Abu Zuhri appeared on Al-Aqsa TV and encouraged Gaza residents to act as human shields. They appear to have heeded the call: Israeli Defense Forces combat video has shown Palestinians rushing to rooftops after receiving warnings from Israel -- via phone calls, text messages and unarmed 'knock-knock' projectiles striking a target building -- that a missile attack is imminent.

"Since the beginning of ground operations into Gaza, the IDF has uncovered approximately 30 ... tunnels leading into Israel, in addition to the more than two dozen discovered prior to Operation Protective Edge. Hamas operatives have been intercepted emerging from such tunnels in Israel carrying tranquilizers and handcuffs, apparently hoping to replicate the successful 2006 kidnapping of IDF soldier ... for whom Israel exchanged 1,000 Palestinian prisoners in 2011."

To me, this isn't complicated. Israel has a right to act in self defense. As long as Hamas opts to make war from behind women and children, Israel has a right to do what is reasonable and necessary to protect its people from the Hamas' rocket and tunnel attacks -- even if Palestinian women and children are killed in the process of Israeli self-defense.

Hamas can stop this "collateral damage" very easily and quickly. It can end the rocket attacks, or it can move the rockets away from civilian areas -- away from schools and hospitals. And it can stop building tunnels into Israel. As long as Hamas tries to kill Israelis using women and children a "human shields," it bears 100 percent of the blame.

American news organizations which blame Israel every time a Palestinian child is killed, are intentionally portraying Israel in a pejorative light. Writing simply that "1,000 Palestinians have been killed" suggests that Israel is responsible for indiscriminately killing women and children. But if Israel was being "indiscriminate" instead of "surgical" the deaths should by now number in the tens of thousands. Gaza is small (141 square miles) and densely populated (1.8 million). If the Israelis are really trying to kill women and children, they are not very good at it.

Perhaps they need lessons from Russia's president. Comrade Putin and his henchman in the Ukraine were able to kill 298 civilian passengers aboard a Malaysian airliner in less than two minutes!

Posted Online:  Aug. 08, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Special Prosecutor Right to Put Zimmerman before Jury

Gadfly reporter Geraldo River told a Fox News interviewer Sunday the special prosecutor in the George Zimmerman case should never have brought charges against Zimmerman.

I could not disagree more. In an era when the public distrusts all politicians -- including prosecutors and even the U.S. attorney general -- I think this is precisely the sort of case that should have been decided by a jury of our fellow citizens. And remember, both the prosecution and defense had the power and the right to select the jurors they wanted, and exclude those they didn't want.

I am not expressing my personal opinion as to whether Zimmerman was guilty or not guilty. Nor do I condone any misconduct by the prosecutor, such as withholding exculpatory evidence. But in her decision to have the matter tried by an impartial jury, the special prosecutor did precisely the right thing.

In my years as an assistant state's attorney, and later as a circuit court judge, I came to have very definite opinions about bringing charges or not bringing charges.

Prosecutors can decide whether to charge and, if they do, to charge the greatest offense or a lesser offense. This is called "prosecutorial discretion."

Most often, the prosecutor makes that decision himself. But he also can present the matter to a grand jury and give it the option of whether to change and what charges to bring. Either way, it is a one-sided presentation; the defense gets to say nothing.

Under our system of justice, however, one thing is clear: While a prosecutor or grand jury may charge, and while a president or a governor may demand an individual be brought to justice, it is the petit jury, the trial court jury, that is the sole finder of fact. It is the petit jury that weighs the evidence and evaluates the credibility of witnesses. And it has the great advantage in that it hears all the relevant evidence -- both prosecution evidence, as well as defense evidence.

The national press has spent a great deal of time inveighing against the "stand your ground" provision in Florida's law of self-defense. I look at the Martin-Zimmerman case rather as a traditional self-defense case. And I look at our self-defense statute and believe the Florida jury decided its case under similar principles.

The Illinois statute provides:

" A person ... is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony."

Our statute does not mention "a duty to retreat." But where retreat is a reasonable option, or where retreat would render unnecessary the need to use deadly force, I believe an Illinois jury would be justified in finding no self-defense.

That being said, when your head is being pounded against the ground, and the next blow driving your head against the concrete may produce death or great bodily harm, and where retreat appears impossible, the reasonable and necessary course may well be to shoot your assailant to save your own life.

That is why I think the Florida special prosecutor did the right thing in bringing this case before a jury. Indeed, I see many reasons for doing so:

1. This was a racially charged case.

2. An unarmed young man, who may or may not have been an aggressor, was shot to death.

3. A petit jury exists to determine the facts, to judge credibility of witnesses, to draw reasonable inferences from proven facts, and to act as the sole judge of the facts. (This excludes the judge, the police, prosecutor and even the president of the United States as appropriate judges of the facts.)

 4. The case is tried in an adversarial setting with the prosecutor doing his best to prove guilt, and the defense doing its best to establish reasonable doubt or innocence. The jury will get the fullest possible presentation of evidence, and will be assisted by arguments of counsel in understanding the evidence and showing them the inferences to be drawn from it, as well as the court's instructions as to the law.

5. The jury, with its six-person collective memory, is better able than any one individual to sort through the jumble of evidence and decide:

a. Whether Trayvon Martin's mother was telling the truth when she testified that her son was screaming for help, or whether Zimmerman's mother was telling the truth when she testified her son was screaming for help.

b. Which of the witnesses were most credible, and to compare and weigh the testimony of each witness.

c, Whether from all the facts, Zimmerman had an intent to murder, or an intent to defend himself.

d. Whether Zimmerman was in imminent danger of death or great bodily harm.

e. Whether Zimmerman's use of deadly force was reasonable.

f . Whether it was necessary.

g . Whether Martin was pounding Zimmerman's head against the concrete, and whether in doing so Martin was committing a forcible felony.

In short, in a case of this nature, the best way to find the truth is to put the matter before an impartial jury, assisted by an impartial judge and competent attorneys.

In this case, the jury was freely chosen by both the prosecution and defense. Nothing suggests that the jury harbored an iota of bias or that their verdict was anything but on the law and the facts.

Posted Online:  July 17, 2013, 11:00 pm  - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea