Firearms Law CLE Friday October 25th

I will be giving a 4-hour CLE (continuing legal education course) for the Vermont Bar Association next Friday, October 25th at the Waterbury/Stowe Best Western -- but it is open to anyone and handy for every firearms owner or person interested in Constitutional law.  Hope to see some of you there! Click the link below for more info and to register.

Firearms Law CLE

What Do You Get When You Buy a Book, Painting or CD?

Visual artists --in this case, Thomas Seddon --forever maintain rights of integrity of their work.

When you buy a book, CD, or painting, you own the physical object, but you do not own the intellectual property of the author, composer, performer or artist who created that object. Your property rights in that object are limited by the continued rights of the creator, who is called the 'author' in copyright law even if the object is a scupture or painting or song. Those limits depend on exactly what the object is and how it relates to the author's intellectual property rights.

If you own a physical book, you can sell that book, burn it, or throw it away, because the creative intellectual property within it is intangible. The words of the story reside in the author's head, and the physical book itself is a fungible object. If you burn the book, you do no harm to the author's intellectual property rights in their story. What you can't do is lift the words out of the book and use them elsewhere during the time period that copyright still applies to those words -- usually the life of the author plus 70 years, but there are many variations on this. So you can't quote those words or incorporate them into your own story, song or movie; you can't put those words on a t-shirt or coffee mug and sell it. But the physical book itself -- go ahead and start the woodstove with it if you want, there's no harm done to the writer's rights.

The physical book--that is, the paper, ink, glue and bindings--were the physical property of the publisher or distributor, and those rights were relinquished when you bought the book. Digital books are another story. Purchasing an eBook on your Kindle, iPhone or computer comprises buying a right to access and read digital files containing intellectual property. There is nothing physical to own. You can't resell an electronic book as there is no physical property -- you've just paid for the right to look at the intellectual property with no physical object being involved. The costs of producing an electronic book are much lower than a print book, so you usually get to read the material at a lower cost, and the author usually gets a far higher royalty payment since the publisher doesn't have to buy paper and ink and glue and pay to ship the physical tomes. However, you do give up that rights of physical ownership of an object that comes along with a print-on-paper book, such as resale or starting fires.

CDs are much like books, and digital music downloads much like eBooks. You can spraypaint your CDs to use as Christmas ornaments if you like, because you are not damaging the intellectual property of the composer or performer. A digital download is the right to listen to the music, and you can not legally transfer those digital music files. The difference between eBooks and digital music files isn't the law -- it's just custom and practice. People transfer digital music files all the time, because the music industry did a piss-poor job of developing means of restricting those transfers. Electronic books came along a little bit later than digital music files (probably because writers are not quite as tech-savvy as musicians) and the publishing industry giants devised a way to introduce eBooks though methods designed to limit subsequent transfers, like proprietary eReader software.

Posters and tshirts and coffee mugs with pictures of paintings on them -- say, Starry Night, or Guernica, or one of Miro's brightly colored lines -- are the functional equivalent of a print book. You can smash them, sell them, tear them up -- because you own the physical property, and the artwork on them is in fungible, commercially mass produced form. Not so with an original artwork.

When you buy an original painting or sculpture, your rights in that physical object are limited quite differently than with a book or CD. While the intellectual property of the book or CD resides in the author's head, the intellectual property of the visual arts resides in the physical expression of the artist's ideas. The manuscript for a painting, in other words, is not in the artist's head but on the canvas. You have purchased a piece of the artist's brain, and you do not have the right to destroy that piece of the artist's brain, because it's not yours.

In addition to the usual copyrights (if you own a painting, you can't sell posters and notecards with pictures of it), visual artists have 'droit morale' or continuing moral rights to the integrity of their works. These include the right of attribution and the right of physical integrity. You can't paint over the painter's name, attribute a painting or sculpture to another artist or yourself, and you can't hang it upside down, paint over it, burn it, or cut the arms off the sculpture. The artist can sue you to stop you from doing so, or seek damages if it's already done. Public agencies in recent years have been successfully sued by artists for, example, repainting a mobile to match the renovated decor of an airport, or cutting the toy gun off a sculpture of kids playing and replacing it with a more politically correct hose nozzle. The physical artwork is done, finished, complete, and you can't change it. You can stuff it in a storage room if you no longer like its looks, but you can't change it.

Original art is usually far more expensive than books or CDs for exactly this reason, you are buying physical custody of the actual intellectual property work, and it is not a fungible item. If you destroy it, the intellectual property creation is gone, as opposed to burning the book but the story remains intact. Buying artwork is then an awesome responsibility -- you are the caretaker or custodian of the piece, and are forever legally entwined with the artist.

SOLD!! Auction Law: What Every Bidder Ought to Know

Artwork is a common auction purchase -- but are you really getting the original you bid on?

Are you attending any auctions this summer? 

An auction, according to Black’s Law Dictionary, is “a public sale of property to the highest bidder by one licensed and authorized for that purpose,” but for all of us who have purchased art, antiques, horses, cars, or who-knows-what-all at an auction, the event is clearly much more than that.  Auctions represent opportunity, a combination of chance from random stumbling across an object of interest, coupled with strategy and skill based on our own knowledge of the area we’ve developed a personal interest in.  Sure, it’s great to stumble on a fantastic sale at the local department store, but to find the perfect addition to your collection at an auction and then secure the winning bid on it is somehow much more satisfying.  The item has greater meaning because you won it. 

For many enthusiastic auction-goers, however, once we are traveling down that road of goal-oriented excitement, headed towards our prize (be it a painting, a baseball card, or any number of random wacky things some of us are known to bid on at auctions), we sometimes lose sight of the legal and logistical details of what we are engaged in. Whether you are a first-time auction-goer or a cool, experienced pro with your own bidding paddle, it is wise to take a deep breath and understand the legal implications of your auction participation.

While you may go your whole life without running into a problem with an auction purchase, if you are an avid auction-goer the odds are that eventually you’ll engage in a transaction that goes awry: the bidding process does not seem above-board, or the item you purchased doesn’t look like the one you inspected, or the payment terms were not as you anticipated and you can’t make the payments as requested.  Understanding the legal context of an auction ahead of time will help you be in the best position to deal with any such eventuality that arises. The legal environment surrounding auctions has evolved to protect consumers from scurrilous and unscrupulous auction practices–and admittedly, such practices do still exist to varying degrees in ordinary auctions, but at least there are rules to be followed, and legal recourse for the purchaser when those rules are broken.

SALES AND CONTRACTS: 

WHAT IT IS, AND WHEN IT HAPPENS

An auction is a means of conducting a specifically defined legal sales transaction, regulated by the terms of the Uniform Commercial Code, as well as each state’s consumer protection, sales, and auctioneer licensing laws. Many municipal regulations that shape the timing, location, and terms of an auction event, either through zoning or by requiring event permits for specific auctions.

What constitutes a “sale of property” is clarified by the terms of the Uniform Commercial Code(UCC) and other state laws pertaining to sales. In its most basic form, a “sale” is the transfer of an ownership interest in something for consideration, meaning money. The UCC is the most common legal code that governs the sale of “goods.”  The UCC uses the term “goods” instead of “property” to distinguish the sale of items, which are within the umbrella of the UCC, and the sale of real estate, which is not regulated under the UCC. Chapter 2 of the UCC pertains to sales, and Section 328 of Chapter 2 specifically pertains to the sale of goods by auction.

Under the UCC Section 2-328. Sale by Auction, a “sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner. If a bid is made during the process of completing the sale but before a prior bid is accepted, the auctioneer has discretion to reopen the bidding or to declare the goods sold under the prior bid.”  That is, when the hammer falls, you, the winning bidder, have ownership title to the item.  The auction is actually a series of separate sales, each concluding with the fall of a hammer, and transferring the ownership title to each item or, when goods are put up in “lots,” to all the items within that lot.

In addition to the UCC terms, the terms and conditions of a sale at auction are determined by the contract entered into between the bidder and the auction house and the seller, or item’s owner.  You don’t remember entering into a contract with them?  You did, whether you are aware of it or not. Courts hold that the terms and conditions of sale listed in an auction house catalog or separate terms and conditions handed out to bidders comprises the contract – a contract you accept when you tender a bid in that auction.  When you bid on an item at auction, you are accepting the sales terms as stated by that auctioneer, so be sure you read them over carefully and understand them thoroughly so you can make an informed decision as to whether to participate in that auction or not.

GOODS, AND WHO OWNS THEM

Within the meaning of the UCC, an auction is a legally authorized process for the sale of goods. Under the terms of the UCC, the “goods” sold at an auction are those items right there present to be transferred at the auction, and the “sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner.” UCC Section 2-238(2).

This UCC definition of “goods” seems intuitive to most auction-goers: Obviously, you go to an auction early to view the actual items you are going to be bidding on, and when you win your bid, you put that actual item in your trunk and drive off with it.  Unfortunately, with the rise in internet “auctions” as well as other questionable auction practices like the cruise-ship art auctions, the question of what goods you are actually bidding on is one consumers must now be attentive to.  Be sure you know BEFORE you bid: is the item listed in the lot the actual item you are purchasing?  Or will you be subjected to a “bait and switch,” being sent “substitute” goods rather than taking home the item in front of you? 

The sale by auction process of something other than the item actually there in front of you (or pictured in the photographs in an internet auction) flies in the face of the UCC auction procedure, which anticipates the sale of “goods” rather than “fungible goods,” which would be “goods of which any unit, by nature or usage of trade, is the equivalent of any other unit, or... goods which by agreement are treated as equivalent.”  A legal, UCC sales-regulated auction is not a process of bidding on fungible goods but rather on a real item in front of the purchaser, with a sale that concludes on the spot.

The UCC definition section states that “Goods must be both existing and identified before any interest in them may pass. Goods that are not both existing and identified are "future" goods. A purported present sale of future goods or of any interest therein operates as a contract to sell.”  The term “existing” is fairly obvious; in order to be presently sold, such as happens at the fall of a hammer at an auction, an item must really exist in the real world. If you “purchase” an item, such as for example an art poster that hasn’t been printed yet, you have not actually made a purchase, you have entered into a contract for a purchase of future goods; it only becomes a completed sale after the item is created and passes into your possession.

In addition to existing, an item must be “identified” before the legal ownership interest in it can pass to the purchaser and complete the sale. At a UCC-type legal auction, the sale is complete when the hammer falls, and an actual good passes legal ownership to the purchaser.

Part of the reason that auctions are regulated by law is precisely that finality: when the hammer falls, the sale is over and done with, without time to reconsider the purchase or return it as one might do with a fungible good you bring home from a store, like a toaster that you decide is not the right color for your kitchen. But if in fact what you’ve done is not finalized a sale, but rather entered into a contract for a future sale of goods yet to be identified, in theory the purchaser should still have all the protections at law regarding the execution and completion of a contract.

Another point which purchasers ought to consider before bidding on goods at an auction is the question of who presently owns those goods.  In most auctions conducted by auction houses or licensed auctioneers, the goods are owned by some other person or many people, but have all been “consigned” to the auction house.  A consignment contract is a legal form of temporarily turning over ownership title to an agent for the specific purpose of selling that item.  When you buy an item at auction, you are typically buying that item from the auctioneer, who has been authorized to sell it by the full owner.  Some auction houses reveal who the owner is that they are acting as agent for; others do not.  And under most states laws, individuals are allowed to auction their own personal property without engaging a licensed auctioneer – the usual case with all those eBay auctions. 

As an auction bidder, consider who you are doing business with.  Are you purchasing an item from a reputable auction house which has a reputation to protect – and business insurance to seek recourse from if there’s a problem?  Or are you buying directly from an owner?  And if so, is that owner someone you wish to engage in business with at the dollar levels you are anticipating bidding?  Many of us consider the source when making large purchase decisions around our home: we might buy our appliances from, say, Sears, because of their warranties and staff repair people, or we might choose to buy a computer from a local dealer rather than a mail-order discount place because we know and trust their reputation and like having a local tech person available to answer our questions.  When investing in art or antiques at auction, you should ask yourself the same kinds of questions about whether you are content doing business with the actual owner and seller of the goods you are considering buying.

WHAT IS SOLD: 

CATALOG DESCRIPTIONS, INSPECTION, and GUARANTEES

We’ve already discussed the need to make sure that the item you are bidding on is actually the item you will be buying.  But there are more questions you should ask about that item – like what exactly is it? 

In addition to the terms and conditions of sale, art auction catalogs typically include a specific list of each “lot” or item (or sometimes groups of items) to be sold.  These catalogs are not as common in estate and farm auctions, which sometimes provide lists of the major items being sold, but towards the end of the day it usually collapses into ad-hoc lots comprised of whatever the auctioneer can throw into the remaining buckets, trunks, and suitcases (meaning you wind up buying eight hand-planes along with that theorem painting you were eyeing).  But art auction catalogs ordinarily contain detailed descriptions of the items being offered in numbered lots.

Although these descriptions contain a lot of information regarding the pieces offered, a careful reading of the warranty or guaranty being offered by the auction house usually indicates that very little of that information is being presented as legally supportable fact.  Typically, however, reputable auction houses will provide a limited warranty as to the authenticity of works which can be reasonably attributed to a particular artist.  Read these warranties very, very carefully, and understand what exactly is being stated and warranted. 

Courts look askance at auction goers who do not personally physically inspect the item they are purchasing before bidding on it.  The catalog description, outside the specific language (usually the bold-type or capital-letter heading identifying the item only) being guaranteed, is legally no more than advertising hype.  Auction items are sold on an As-Is basis: what you see is what you get, regardless of what flowery language the catalog uses to describe the beastly, rusted, tattered thing. You are fairly assured of getting no quarter from the courts if you bought a hunk of junk (or poster instead of an original painting) on the basis of the catalog description without giving it a close personal inspection first.  If you are bidding via telephone or on line, your risk increases greatly.  Ask for additional photos of the item and carefully research the seller’s reputation before dropping large sums of money on an item sight unseen.

BIDDING PROCESS: RESERVES AND WITHOUT RESERVES

Bidding processes are referred to as being with or without reserve, which reflects a provision in the UCC regarding whether or not the seller can withdraw the item, or set a “reserve” price, meaning if bids don’t go over that price the item is automatically withdrawn.  If there is no mention of whether or not the auction is with reserve, then by law the seller retains the right to withdraw the items.

UCC Section 2-238 states:

(3) A sale by auction is subject to the seller's right to withdraw the goods unless at the time the goods are put up or during the course of the auction it is announced in express terms that the right to withdraw the goods is not reserved. In an auction in which the right to withdraw the goods is reserved, the auctioneer may withdraw the goods at any time until completion of the sale is announced by the auctioneer. In an auction in which the right to withdraw the goods is not reserved, after the auctioneer calls for bids on an article or lot, the article or lot may not be withdrawn unless no bid is made within a reasonable time. In either case a bidder may retract a bid until the auctioneer's announcement of completion of the sale, but a bidder's retraction does not revive any previous bid.

(4) If the auctioneer knowingly receives a bid on the seller's behalf or the seller makes or procures such a bid, and notice has not been given that liberty for such bidding is reserved, the buyer may at the buyer's option avoid the sale or take the goods at the price of the last good faith bid prior to the completion of the sale. This subsection shall not apply to any bid at an auction required by law.

Check carefully before you bid: sometimes the auction catalog or terms and conditions of sales will reflect whether or not the auction as a whole is with or without reserve; other times this will be announced on a lot-by-lot basis. 

AUCTIONEERS LICENSES

According to Black’s Law Dictionary, an auctioneer is “a person authorized or licensed by law to sell lands or goods of other persons at public auction. One who sells goods at public auction for another on commission, or for a recompense.”

The reason that auctioneers are required to be licensed and regulated is that auctioneers play an unusual legal role. In most sales situations, the sales person is clearly the agent of the seller; in real estate purchases and some other large commercial transactions, there may well be a sellers’ agent and a buyers’ agent. The near-universal rule of law is that a person can not be an agent of both parties to a transaction.  But auctioneers are the exception to this rule. Again, according to Black’s Law Dictionary, “The auctioneer is employed by the seller and is primarily his agent. However, when the property is struck off he is also the agent of the buyer to the extent of binding the parties by his memorandum of sale, the satisfying the statute of frauds.”

Because of this unique legal position, and because state legislatures wish to protect consumers against unscrupulous auctioneering practices, states license auctioneers as they do other professionals from lawyers and architects to cosmetologists and dentists. Each state has a statute and regulations regarding auctioneer conduct, which auctioneers must learn and be tested on before receiving a license. And if an auctioneer – on land – engages in unlawful auction practices, then the consumer can file a complaint with the state licensing board, which may result in the auctioneer having his or her license removed, effectively putting them out of business.

Although auctioneers are engaged under contract by the seller of goods, the auctioneer is an independent professional business. Auction houses develop their own business reputation, and a reputable auction house will work hard to maintain their good standing in the business community and resolve any disputes or allegations of misconduct swiftly and professionally in accordance with law. Auctioneer who specialize in particular areas, be it art, antiques, or the sale of business inventories, develop an expertise in the market which can be extremely helpful to both sellers looking to maximize the return for their goods as well as purchasers seeking accurate information about the item being purchased. Of course, there are still slick-talking wily auctioneers as there are slick-talking wily used car salesmen, lawyers, and time-share brokers; but the licensing laws and professional regulations at least provide the consumer with reasonable recourse, and an auctioneer’s reputation helps guide consumers in their decision as to whether or not to attend and bid at any given auction.

LEGAL RECOURSE, AND SUCCESS AT AUCTION

What happens if your purchase goes awry?  The terms and conditions of sale listed in the auction catalog typically specify which court has jurisdiction over any disputes that arise regarding the sale. This is another factor you may want to consider in deciding whether or not to participate in any particular auction – do you want to bid many tens of thousands of dollars in New York if you live in Texas and will have to travel to New York courts for the next four years if there’s a problem?  Perhaps you do, perhaps you don’t, but as long as you are aware of the terms, you can make that decision on a knowledgeable basis. 

The auction catalog terms – the terms of the binding contract you have entered into by bidding – will also likely state the recourse for some of the most typical disputes which might arise at art auction.  For example, most art auction catalogs set out a process for reviewing disputes over authenticity of the work sold, which typically involves having two independent experts examine the work, and if it’s proven to be a fraud, the sale will be rescinded.  However, these terms vary and are set by contract in each individual auction, so be sure you understand what they are before you bid.

Buying art, antiques, and other interesting items at auction is fun, exciting, and rewarding, and can yield fine purchases that prove to be wise investments over time. Just be sure before you bid that you have a clear, knowledgeable understanding of what you are bidding on, who you are buying from, and the terms of the sale that will occur when the hammer falls on your winning bid.  Success at auction is that great feeling when you travel home with a highly desirable item gained at an appropriate, or bargain, price – not that sinking feeling in the pit of your stomach as you wonder, why on earth did I buy THAT?  Take the time to learn the legal framework of an auction sale, and carefully study the terms, conditions, and warrantees offered at the auction you are attending before you get overwhelmed with the bidding excitement.  Then get in there and bid!

Self Defense Laws

The Castle Doctrine, stand-your-ground, duty-to-retreat, and the rule of first aggression, are a few of the elements of the legally, ethically and emotionally complex realm of self-defense law. Self-defense statutes vary very widely from state to state, though often the specific facts of a situation along with the opinion and community standards of jurors, makes a far bigger difference in the legal outcome than does the language of the law on the books. As with all fields of law, there's what the book says, and then there's how it actually works. 

Law is a lot like grammar -- it's a living part of the culture which it inhabits. What the grammar books say and how people talk are quite different; what the law books say and how the law is applied can also be quite different. This comes as a surprise to many people who think that the law-is-the-law-period-the-end.  The law is more like.... guidelines. With some exceptions (like mandatory sentencing).

Self-defense is the idea that despite the proscriptions of law, ethics, and religion against killing, a person has the right (lawful or ethical authority) to defend him- or herself against an attacker, including with the use of deadly force if necessary. But not all attackers, attack-ees, or attack circumstances are the same. 

 Duty To Retreat

The starting point of self-defense law is a duty to retreat. The duty to retreat says that if someone attacks me -- anywhere, any time -- I MUST make all effort to remove myself from that situation before I can lawfully use deadly force. Until I am backed into a corner at the end of a blind alley, I can not legally shoot the person assaulting me. 

Why would the law apply a duty to retreat? To stop people from looking for trouble and to avoid the standard bar-room murder situation where someone baits another individual then shoots them when they throw a punch. With no duty to retreat, I could stand in the middle of the sidewalk and shout obscenities and epithets at passersby then legally shoot each one who responds by shoving me or taking a (probably well-deserved) swing at my mug.

Worse, with a full duty-to-retreat, if someone invaded my home I'd be obliged to run out the back door into the night in my nightgown rather than shoot them. So the majority of duty-to-retreat laws have modifying factors -- I don't have to retreat if it would put me in danger, like making me run out into a blizzard in bare feet and my April Cornell nighty. Or into oncoming traffic. Or leap off a train. 

Castle Doctrine

The Castle Doctrine reflects the adage that a man (PERSON'S) home is his (OR HER) castle, and that you have an absolute right to occupy your own home (mortgage foreclosure schemes aside). At least half the states in the US, and many other countries, have Castle Doctrine laws that say you don't have to retreat in your own home. If someone breaks into my home in the night, I can shoot them. This makes conceptual sense, though I can think of dozens of tragedies where people have shot their own partner or kid who had forgotten their key -- a duty to leave the house rather than shoot might have avoided those instances. Yet at the same time, countless home invasions have been thwarted by the use of the castle doctrine. 

The castle doctrine also gets very complicated when dealing with instances of domestic conflict, and with cases where someone leaves their home to get a weapon then returns to their home. A recently widely reported and criticized case in Florida involved a woman leaving the house to get a gun from the garage to come back and shoot her abusive spouse in the midst of an argument with him. In most states, a jury will be instructed that once you leave that house, the Castle Doctrine evaporates; you can't come back in and invoke the Castle Doctrine. Vermont has seen similar cases, where an individual comes home to find people in his house, gets a gun out of his car or barn and comes in to chase out the intruders. You can't use the Castle Doctrine in your defense when you do that. 

Stand Your Ground

Stand Your Ground is a concept now made notorious by the Trayvon Martin case, in which an unarmed black teenager on a public sidewalk was shot and killed by George Zimmerman. The concept of a stand your ground law is that you do not have to retreat when attacked in any place which you are lawfully permitted to be. In a duty to retreat state, or even a state with a Castle Doctrine, if I'm attacked in my car, at a restaurant, or in a parking garage, legally I must run, not shoot. If I'm walking to my car in a dark parking garage and someone menaces me, rape kit in hand, I can't legally shoot him (or her). I have to run out, maybe in heels, maybe in a city I'm not familiar with, to avoid the attack. In states with a stand-your-ground law, I can pull out my gun, since I'm lawfully allowed to be there in that parking garage. 

In the parking garage scenario, few people would probably argue that I should have to run out into the night, regardless of the statutes on the books. Yet if I shot my assailant and was arrested, a jury in a duty-to-retreat state would be instructed that they must find me guilty if I didn't run; in a stand-your-ground state, the jury would be told that I did not have to run. 

But the world usually doesn't hand us this kind of made-for-tv-movie scenario of a helpless high-heeled woman assaulted by a stranger in a dark parking garage.  The majority of assaults are a more ongoing, dynamic situation -- hostilities festering in a bar or between social acquaintances who hate each other, or with self-appointed vigilantes following or harassing people they don't want in their neighborhood for whatever reason (race, clothes, ethnicity, profession, religion, or buying the wrong brand of candy).

While the principle is well-intentioned and meant to protect the innocent damsel in distress, how can we stop a stand-your-ground law from descending into the scenario where I can antagonize people at a bar or in the street, and then shoot them when they take umbrage?  

First Aggression

The vague notion of first aggressor doesn't necessarily provide the guidance to say when a person surrenders their right to stand their ground. The law usually says 'first aggressor' is the person who swung first -- NOT the person who started the conflict.

Some years ago I represented a young man on charges of attempted murder when he beat the bejesus out of several guys (ayup, several, he was damn good at it) because those guys had been baiting him and his friends all evening as they tried to enjoy a meal in a diner. The beaten-up-guys were urban, and making snide comments about smelling cowshit and other comments questioning the manhood of the group of local farm kids. Apparently the urban guys were unaware of just how much those bales of hay and heifers way; they wound up nearly dead in a ditch. 

No matter what jerks the urban guys had been, no matter what come-uppance one might thing they deserve, the law says the local farm kids had to retreat. Even the one who was really good with his fists. He's now doing a very long stretch of time for this. 

Many people would consider an hour of taunts and insults to constitute an act of first aggression. The urban boys were, obviously, looking for trouble. They were trying to start something. But the law says this is not an act of first aggression. Not until the first punch is thrown. 

Then, since the incident was in an open parking lot, the duty of retreat would have applied; the local kids could have, and legally should have, run. Had the urban guys hit them, they would have been entitled to take enough of a punch to break away and run, but would never have been justified in using more force than necessary to escape. 

There are many more factors in self-defense law, including the strengths and capabilities of the individuals involved, the jury's perceptions of the reasonable fears of the people involved, along with all of our society's biases, privileges, and prejudices. The self-defense laws both on the books and as applied seem so varied and capricious as to be unjust. Whenever there is a vast realm of discretion in some area of the law, that law can easily be applied unfairly, to the benefit of some and the detriment of others. Yet whenever laws have no discretion -- like mandatory sentencing -- they are also unfair and don't allow juries and judges to take into account the infinitely varied factors of all the circumstances and people to whom they are applied. 

I don't know where to start to begin making our self-defense laws across the country reflect the right of every individual to the dignity to protect themselves against physical aggression while not giving a free hand to troublemakers and vigilantes. I tend to think that an expansion of the concept of first aggression, so that juries are instructed that they can consider whether a person was looking for trouble, might be a good place to start -- but the problem is working through all the possible scenarios that might arise and trying to figure out how this could also be mis-used to the detriment of justice rather than its advancement.