An Interview with Blair Nelson
With the internet exploding over Minnesota Supreme Court’s decision against Earley Romero Blevins, I really appreciated the time Northern MN attorney Blair Nelson took in August to discuss that ruling using clear language and help explain what looked to me, as a layperson, like a substantial expansion in Minnesota’s duty to retreat before one may act in self defense. So much concern has been expressed by Network members that we share our visit with Nelson in our Q & A format below, as well as a less formal video version at https://www.youtube.com/watch?v=sXdzjfKOAK4 .
eJournal: Thank you for agreeing to help us understand what just happened at the Minnesota Supreme Court, Blair. Let’s start by getting to know you and your law practice. You’ve been a Network-affiliated attorney since 2012, and unless I’m mistaken, you’re licensed to practice in both MN and North Dakota. Tell us about your work, please.
Nelson: I’ve been licensed since 1996. My practice has always involved criminal defense work -– exclusively criminal defense and gun law since about 2014. I’ve been certified by the Minnesota Bar Association as a certified specialist in the area of criminal law. I was part of the team in the Worth v. Jacobson case, that is still ongoing to establish the right to carry for young adults in MN that are under 21.
eJournal: I’m afraid your good results in Worth may have been eclipsed in the deafening outcry over the Blevins ruling. We’re hearing terms like duty to retreat, brandishing, and references to other states’ stand your ground laws so much that frankly, it is hard to grasp what the ruling really means for decent, law-abiding people. Despite the court repeatedly stressing that it was a narrow ruling, Blevins has a lot of people extremely worried. Can you synopsize what the state supreme court said Minnesotans may or may not do to stop an evolving threat before they can use force to stop life-threatening injuries?
Nelson: At beginning of the Blevins decision, they did say that this is a narrow decision. It’s a case of first impression in MN that establishes a duty to retreat in cases where people have committed the offense of second-degree assault, infliction of fear with a dangerous weapon. On the surface, it does not apply to any other offense in MN, but it definitely does change the landscape of how people need to think about acting in self-defense cases.
eJournal: How did MN end up with a duty to retreat without legislation having been passed to that effect? How has that duty been imposed historically? I’ve been wondering because as you said when you and I were talking earlier, it’s unlikely that a member would ever do what as Blevins did. What’s the history behind this decision?
Nelson: The duty to retreat has always been there in MN in cases of use of deadly force. I crawled around on Westlaw and found cases back to 1865 that included a duty to retreat before using deadly force. It has always been required before you harm somebody else. This just extended it to the threat of harm and the imminent threat of bodily harm using a dangerous weapon.
People may not have been privy to all the facts in the Blevins case. Those facts matter. Mr. Blevins was charged with three counts of assault with a dangerous weapon. He had the world’s worst lawyer – himself – and had standby counsel. He made what I would always call a mistake: waiving a jury trial and having the case heard by the court sitting in place of a jury.
Despite that, he was actually acquitted of one count of second-degree assault with a dangerous weapon and convicted of two others. The facts of the case: he was invited to step outside of the range of cameras by someone that had a knife that threatened to slash his throat if he came and joined them on the platform. Rather than leaving the situation, he drew a machete and spent almost a minute chasing people around the train platform.
This goes beyond the classic Paul Hogan, Crocodile Dundee, “That’s not a knife. This is a knife!” and went full on Danny Trejo Machete.
eJournal: Well, like you said, most of us wouldn’t do the same thing, but I think that we do see ourselves in the beginning, earliest phases of an incident where somebody says, “Come over here and I’ll slit your throat,” and they are brandishing a knife. The lawful response is the part in which we’re interested.
I wonder what the legal fallout from the Blevins decision will be, especially for a person who is violently attacked under fast-changing circumstances. An attacker can cover distance pretty darn quickly! While I expect there’s irony in use, some people have said that now if you draw a gun, you better shoot it to avoid being charged for failing to retreat. Is de-escalation off the table now?
Nelson: First of all, the people saying that are crazy. Use of a firearm is deadly force. There is and always has been a duty to retreat. Don’t read more into this than the law says.
Any use of force needs to be reasonable – that’s just an absolute cornerstone.
The concerned public here is asking the wrong question. In self-defense cases, the question is not, “What can I do?” The question is, “What must I do?” That is the ultimate question that keeps you on safe ground.
What you must do is the reasonable thing. People need to keep that in mind. The essence of self defense is defense of self. It is not an invitation to become an aggressor, which Blevins did in this case.
Blevins has a history that includes three armed robbery convictions. Blevins has been convicted of felon in possession of a firearm. Maybe that’s why he was running around with a machete in his pants, right?
Anything you do has to be reasonable. In fact, if you are armed with a firearm and somebody is threatening you with an impact weapon, it is reasonable and tactically prudent to create space, if at all possible. You need to stay out of their reach if you are going to avoid harm. You have more reach than they do.
Retreat is always the preferred option.
eJournal: I read, possibly in the decision from the Minnesota Court of Appeals that someone had come up behind Blevins whom he fended off, and I believe that use of force led to the charge that he got acquitted on, that was considered self defense. There was, as you said, quite a bit going on that train platform at that point. And then you take that – a real furball of a set of circumstances – and out of these facts, we’re getting case law! Even for those living outside MN, as I do, there is concern ultimately about our own state’s laws as well as what our state’s case law requires, if one of us needs to defend ourselves.
Nelson: Don’t get in the weeds with this furball of an incident. It’s not going to apply to your furball. Every furball is different and it is an exercise in futility to try in your head to prepare for imaginary bugbears. There’s no sense to it. The important part that needs to be included in the training of the armed citizen, and what the armed citizen needs to bring to mind, is that retreat is always the most reasonable option.
Now, as far as attorneys defending these cases, I can see that we are going to end up litigating the applicability of self defense a lot more. That is probably going to require the bar to present evidence of reasonableness far more often than they have in the past in cases involving display of a firearm or defensive language.
Think back to our good friend now deceased, Jim Fleming and his book Aftermath, which was my first exposure to the psychology and the psycho-mechanics of a self-defense situation. His reference to Dr. Alexis Artwohl’s work covers things that the defense bar needs to bring up to show the reasonableness of the situation based upon how the human mind responds to threats.
eJournal: Some have wondered if we were going to face duties to retreat more broadly, not only in MN, but if this were to spread into other states. Some have opined that if our alternative becomes verbal warnings, even while backing away, our warning might become, “Don’t come any closer. I have a gun.” I am concerned that tactic just swaps one crime for another. Are we exposing ourselves to charges of making terroristic threats if we emphatically say, “Don’t come any closer. I have a gun!” What are your thoughts about verbal warnings?
Nelson: As a practical matter, it makes a lot more sense to say, “Stop,” rather than, “Stop, I have a gun.”
The act of saying, “Stop! I don’t want this fight” is how you show your peaceable nature and that any eventual use of force is reasonable. That has been the history of self defense. You need to be, as Massad Ayoob says, on the side of the angels. As a matter of common sense, that is the attitude that the armed citizen has to take.
Offenses vary state to state, and everything has to be done within the parameters of the law of the jurisdiction. Where you have different laws, and different rules, in different places, people need to know the rules for where they are.
eJournal: It’s easy apply the term “brandishing” to Blevins’ actions, swinging a machete around at three people for 58 seconds. For self defense, I very much prefer the term “defensive display” if we’re showing a deadly weapon to stop aggression at gunpoint. In the various states would you call what Blevins did, defensive display of a deadly weapon, or brandishing? Your thoughts on terminology? Is one good, is one bad?
Nelson: Terminology matters, depending on the jurisdiction. Minnesota has no definition of brandishing in the law. The offense that Blevins was convicted of – second degree assault with a dangerous weapon – is very simply defined in MN with certain elements. First of all, an assault is an act. There has to be an act involved, with the intent, to cause fear of immediate bodily harm or death.
I would suggest, although this is not necessarily the way a court will see it, that an assault requires pointing a firearm at another. Because a gun carried at low ready, for example, is not a position to intentionally scare someone that the threat is immediate, it is a preparation rather than a declaration, so to speak. In fact, MN has laws that say it is a misdemeanor to point a firearm at someone else, whether loaded or unloaded.
Then you have the elemental jump to pointing with the intent to make them afraid of immediate bodily harm or death, so it gets very fuzzy and escalates very quickly.
I would say in self-defense cases, words matter. Demeanor matters. Now, aggressive language about guns or “I’m a gonna…” is not a good approach. “I’m a gonna” get the hell out of there is a damn good approach.
eJournal: Good for you. Well, you’re absolutely right: as the fallout from Blevins has evolved, people’s suppositions that the sky was falling because of it have gotten wilder and wilder. It’s been alarming to hear some apparently planning to make threats about having a gun and what they are gonna do with it. I appreciated the concept you cited from MN law, about the action, so I’m wondering now, are our actions analyzed as different than our verbalization?
Nelson: Yes, an act requires an act. Threats of violence is a different crime than assault in the second degree in MN. It used to be called terroristic threats. It’s a somewhat lesser felony, but still a crime of violence, and a bad idea. Don’t do it.
As the law gets applied, these minor differences matter a great deal. Don’t, as a citizen, worry about the minor differences or try to plot that out. If it’s a furball, you just need to be as reasonable as possible and as peaceable as possible to stay out of trouble.
eJournal: I think we can conclude that Mr. Blevins was neither peaceable, and the court would say, probably not reasonable, but you’re absolutely right about demeanor. Let’s talk about the courts a little bit. Blevins lost a court of appeals plea and now the Minnesota Supreme Court has ruled against him. If you had a better set of facts, would it normally be this difficult to get bad rulings changed through the appellate process?
Nelson: The appellate process is the last resort. Very few cases get overturned on appeal. You don’t want to be at the mercy of the appellate courts because oftentimes you’re sitting in prison while they’re working it out. Years ago, I had a gentleman who was convicted of assault with a knife who had tried to claim self defense at trial. The judge gave a bad instruction that he had a duty to retreat in his own home, which MN does not require. By the time the Court of Appeals overturned that, he had been released from prison. Likely you’re going to sit in custody while the appeals are going on, particularly in a serious felony. You can’t undo that.
eJournal: Is there any further recourse for Mr. Blevins? Dave Kopel was quoted as saying that the United States Supreme Court generally doesn’t take cases that are specific to state-level self-defense laws. Do you think Blevins has got anywhere else to go with this?
Nelson: Blevins has no federal or constitutional questions that were raised at the lower courts. In a self-defense case like this, there are arguments that a Bruen theory could be raised as to the history of the duty to retreat. In this case, there would be a good Bruen argument as MN has just adopted a duty to retreat in cases of threats. However, there will be a bit of an appellate furball as to that duty to retreat, which has always existed, back into the early days of the country.
You have to raise the right issues, but Mr. Blevins’ case is done for all intents and purposes. Of course, he doesn’t care. He’s a fugitive right now.
eJournal: I read that, too. As you and others have commented, bad cases make bad law. And his was not a good case.
Nelson: Well, realistically, as you said, nobody is going to spend a minute chasing people around a train platform with a machete. That’s not our demographic. What is going to affect our demographic going forward is this additional duty to retreat placed on second-degree assaults, infliction of fear, with a dangerous weapon in MN.
eJournal: It puts so much more weight on the advice that you gave us to retreat when we can. It gives added importance to what you said that is almost life-style advice: Have a non-aggressive demeanor. All those things become even more critical when case law like this comes about. There has been a lot of mention about the stand your ground provisions that are currently in some states’ laws. A certain number of states really don’t have a duty to retreat. I wonder how many politicians and how many courts are looking at this saying, “Hey, we could knock that down a little bit?” Have you any thoughts on that?
Nelson: I’m not even going to try to guess.
eJournal: [Laughing] You’re not going to polish your crystal ball for me and peer inside?
Nelson: I don’t have one. Nobody does. However, what people should do, is to not be the next test case. Don’t put yourself in a position where you can screw up this bad. It’s not worth the aggravation.
eJournal: I’m just a lay person. Many times, when I do these kinds of interviews, I don’t even know if I’m asking the right questions. You’ve been really gracious about redirecting some of my missteps and that’s so much appreciated. Are there things that I should have asked that I failed to ask you?
Nelson: Well, there’s a whole bunch of questions that people have, hot takes, reactions, and over-reactions. Let’s talk about what this decision does not do.
It does not impose a duty to retreat in the home. No, it specifically applies to a case such as this of infliction of fear where there is a duty to retreat. MN has no duty to retreat in the home so long as the use of force itself and circumstances are reasonable. Okay, so that’s one thing.
It does not necessarily apply to open carry. The very act of having an exposed firearm may bother certain people that are subject to being bothered by the sight of a gun, but at least for this offense, the person who is open carrying, absent other circumstances, is not doing so to inflict fear that he is going to immediately hurt somebody, so it should not apply to open carry. That’s an area that people are concerned about. Open carry is not a good idea, but Blevins should not apply to that. All right?
It does apply to the concept of what you can and cannot say, and that is, as we’ve talked earlier, a demeanor issue. The armed citizens, at least online, the keyboard warriors and such, tend to make a lot of big, bold, brash statements, which, by the way, to those of you who are warring on the keyboard, can and will be used against you later. Don’t do that. The ethos of the community needs to check itself and this is one benefit of and a good reminder to maintain a peaceable demeanor. Avoid conflict when you can, and it will be seen as far more reasonable.
eJournal: That packed a lot of learning into a short period of time. Is there anything else? Anything else that will set us on the right path?
Nelson: I make a practice of doing pro bono consultations for people that have MN permits to carry. I would rather take a phone call and discuss the mindset and the way to approach life than defend somebody later. There’s plenty of work out there and I would rather people stay out of trouble, than have to hire me down the road.
eJournal: You’re awesome, Blair, and we’ve had 12 wonderful years teamed up with you. Let’s go forward to more, and for now, thank you for being there for us. Thank you for supporting our work. Let us know if there’s anything we can do for you there in MN. We’re proud to be teamed up with you.