Last December, while 11 weeks pregnant, Krissy Noble was attacked in her Arkansas home by an intruder. The intruder had come by the apartment earlier, asking for her husband, but she didn’t know him. On checking, she found out that her husband did not know the man, either; it later turned out that the name he gave Noble was false. When he came by again, she was on the phone with her husband, who said that he would send a neighbor to check out the situation. At the door, however, she was tackled and punched. Breaking free, and fearing for her life — and that of her child — she grabbed her husband’s pistol, which she had placed on the coffee table after the first suspicious visit, and shot the man three times. Then she ran to the neighbor’s apartment and told her to call 911.
When the police arrived, Noble led them to the body and handed over the gun. Police found duct tape and a rolled-up duffel bag on the attacker’s person. Later, having investigated his identity, they discovered that he had a history of assault. Taking these two factors into account, the police concluded “that Krissy Lenae Noble was justified in her use of force and that this is a justifiable homicide, which does not merit the filing of criminal charges with regard to the homicidal event.” Noble gave birth to her child this year.
Last week, however, prosecutors decided to press charges against Noble — not for the killing itself, which is still held to be justified in self-defense, but for illegally possessing a gun at the time she was attacked.
The situation is absurd as it sounds: Nearly a year after the fact, Noble is being charged not for killing someone with a gun, but for holding a gun at the time she killed someone — an exquisite slicing of principle that makes a farce of our system of justice. The idea that a person is not to be held culpable for the use of a given instrument if the cause is self-defense goes back to the Codex Justianus of Roman law, and it’s enshrined in the common-law tradition that passed from England to America. By determining that her act was lawful but her tool was not, prosecutors in Arkansas are taking aim at a bedrock principle within American life.
They are also departing from the contemporary norm. In early 2017, Noble had been arrested for a nonviolent marijuana charge; she was in a car that contained marijuana for which no one person claimed responsibility, so everyone inside was charged with possession. As a result, she was given a five-year suspended sentence, which contained the caveat that she neither own nor possess firearms — the general rule for felons in Arkansas.
Did she “own” or “possess” the gun she used? Given the law in Arkansas, it’s hard to see how she did. The gun Noble used belonged to her husband, who serves in the National Guard. The language of Arkansas’s criminal code treats “possess or own” as broadly equivalent and would not include brandishing it in an emergency. Had her husband left his guns at her home while he lived elsewhere, there might be reasonable grounds for suspicion. But he lives in the same home, and therefore keeps his guns there. Effectively, the authorities are suggesting that Noble should have reached for a less deadly weapon — a cast-iron pan, or a glass bottle, for example. If she had done so, she wouldn’t be facing gun charges. But she or her child might not have survived the encounter.
It is unclear why the authorities had their change of heart. After all, they were aware of Noble’s marijuana charge when she was cleared of the shooting, and no new information has emerged in the meantime. But change their minds they did, and now she will be dragged through the system. On being charged with possession of a gun last week, Noble immediately turned herself in to the police. She has a court appearance on September 6 and is currently out on bond to take care of her baby. If convicted, she could be sentenced to six years of prison and effectively miss the early childhood of the son whose life she saved. To try to prevent this, her family and local community have put together a GoFundMe for legal fees.
Perhaps the jury will see the absurdity of the situation. Perhaps not. Either way it will remain the case that Noble’s disgraceful treatment is by no means unique. Shamefully, the blanket prohibition of gun use and ownership by those with criminal records — including records for nonviolent, and sometimes unintended, crimes — serves often as a filter that excludes certain groups from their right to bear arms. And no, as with Krissy Noble, it is not the case that only the guilty are eligible for such deprivation. High-school civics classes and pop culture have created the impression that the accused invariably get a day in court to argue their cases before a jury.
In reality, though, 94 percent of state-felony and 97 percent of federal-felony convictions are the result of plea bargains, which defendants are pressured to take even if they maintain their innocence. There is a debate to be had about whether the root of the problem is in this procedure or in the overcriminalization by legislators that creates the incentives for it, but the result is the same. A felony conviction does not necessarily indicate a hardened criminal who was brought to justice with overwhelming evidence — in many cases, it indicates that someone was in the wrong place at the wrong time, and was perhaps of the wrong color, too.
Recent case law at the federal district-court level suggests that the across-the-board prohibition of gun possession by former criminals poses a Second Amendment problem — especially in the case of those criminals whose offenses were nonviolent and who are unlikely to commit a crime again. That question will be litigated in due course. In the meantime, though, we should at least be able to agree with the Emperor Justinian that when one is saving one’s own life, the regulations are moot. “That which someone does for the safety of his body,” the Romans held, “let it be regarded as having been done legally.” That should be good enough for Arkansas, too.