In “Defense of Others”

The American Freedom Law Center has represented many pro-lifers who seek to rescue women from the harm caused by abortion.  We currently have two cases on appeal to the Michigan Court of Appeals involving Red Rose Rescues that occurred at abortion centers in Michigan.

In both cases, we are trying to establish the right to a jury instruction on the “defense of others” as a matter of state law.

By way of background, in People v Kurr, which was decided by the Michigan Court of Appeals in 2002, the defendant killed her boyfriend with a knife and was convicted by a jury of voluntary manslaughter.  The defendant was pregnant with quadruplets at the time of the stabbing.

The trial court sentenced her as a fourth-offense habitual offender to five to twenty years imprisonment.

The defendant appealed her conviction, arguing that she should have been allowed a jury instruction regarding the defense of others because the jurors could have concluded that she killed her boyfriend while defending her unborn children.

The Michigan Court of Appeals agreed that a defense of others jury instruction was appropriate and reversed the conviction, remanding the case for a new trial.

Therefore, in a case involving a defendant on trial for homicide—that is, the defendant used lethal force to protect an unborn life—the court held that “the defense [of others] extend[s] to the protection of a fetus, viable or nonviable.”

Relying on this case, we filed a brief today in the Michigan Court of Appeals on behalf of a Red Rose Rescuer, Matthew Connolly, who was denied a “defense of others” jury instruction in his trial for a simple trespass that occurred at the Northland abortion center in Southfield, Michigan.  In the filing, we argued the following:

Whether [the Red Rose Rescuers] honestly and reasonably believed that human life was in grave and imminent danger at Northland on April 23, 2022, was an issue for the jury.  People v Kurr, 253 Mich App 317, 321 (2002), establishes that “the defense [of others] extend[s] to the protection of a fetus, viable or nonviable.”  The “other” at issue here (a viable or nonviable fetus) is the same as the “other” at issue in Kurr.  It is wrong to conclude otherwise.

To be clear, [the Rescuers] were not protesting abortion.  (See People’s Br at 14 [attempting to distinguish Kurr from a case involving “anti-abortion advocates protesting at abortion clinics”]).  They were rescuing innocent human life.  A person does not enter a burning house to rescue a child in danger because the person is protesting fire.  There is no question that human life was in imminent danger of death at Northland on April 23, 2022.  Northland aborts (i.e., intentionally kills) babies in the womb.  That’s its business.  And abortions were occurring at Northland on the day in question.  This is not disputed.

While the appearance of human life changes from its early stages (the developing fetus) until it’s natural death (e.g., an elderly person dying from natural causes), the substance remains the same: it is a human life.  This is affirmed by reason.  It is affirmed by science.  And it is affirmed by commonsense.  Unfortunately, Roe has corrupted our judiciary to the point where the courts must suspend reality, deny reason, reject science, and dispense with commonsense when it comes to abortion.  As the U.S. Supreme Court noted in Dobbs v Jackson Women’s Health Organization, 142 S Ct 2228 (2022), “Roe . . . has had damaging consequences.”  Id at 2243 (emphasis).  These “damaging consequences” include the corruption of our judiciary.  As noted above, the “other” that was the subject of the “defense of others” in Kurr is the very same “other” at issue here.  It defies reality to conclude otherwise.  The defense applies.

Moreover, Dobbs rendered Roe v Wade void ab initio as “Roe was egregiously wrong from the start.”  Dobbs, 142 S Ct at 2243.  Dobbs’s impact in this case is similar to a situation where a criminal statute is rendered unconstitutional: “it is wholly void, and ineffective for any purpose; [it] is as inoperative as if it had never been passed.”  Briggs v Campbell, Wyant & Cannon Foundry Co, 2 Mich App 204, 218 (1966).

Accordingly, there is no basis for denying the requested defenses based on the Kurr dicta following Dobbs.  Dobbs rendered all reliance on Roe a nullity as if Roe had never been decided.  Kurr has not been overruled.  Roe has.  For example, in dicta (the case did not involve an abortion), the Kurr court stated: “Our holding today does not apply to what the United States Supreme Court has held to constitute lawful abortions.”  Kurr, 253 Mich App at 326.  Similarly, it is wrong to argue that the defense of a fetus (the “other”) is only available when the assault is “against a mother.”  (See People’s Br at 13-14 [quoting Kurr, 253 Mich App at 323]).  When the mother is the subject of an assault, she is not the “other”—and her defense is called “self-defense.”  Undoubtedly, this statement in Kurr is directly related to the court’s reliance on Roe as it makes no sense otherwise.  Consequently, Dobbs renders this argument a nullity as well.  The defense of “others” applies in this case.