I used self defense: Illusion or fact.

[sirrduke2010]

I am not an attorney so I can't give legal advice and nor should be considered legal advice. It is just the odd true cases I have found that make you wonder what is self defense and am I using appropriate force for the situation. A good example of this is a case of someone spitting on another and the victim responding with a Karate kick to the spitter. Was this appropriate force and I would say no of course not. If someone shoves you can you pull out your gun and shoot him. The answer is no it is excessive force for the situation. The same can be said for the issue of an intruder being shot in the back and/or if the person is trying to escape. You have to show an immediate threat to respond with lethal force. Rape is another category where the victim can respond with lethal force. Of course I got responders lining up with the statement: "it is better to be tried by twelve and buried by six."

I find that one of the most mis-understood topics is what is self defense. I have been reviewing self defense real life cases and what I have found that it isn't obvious all of the time. The criteria for self defense is based on the concept that a person must use appropriate force and equitable force and when the threat stops he must stop his actions against the attacker. If you study the cases the argument for self defense it may not be so obvious to the police or the DA. The DA often files charges in those cases.

An obvious case was the Pharmacist you shot a robber in the head and after he was down on the ground pumped five more shots into him. He was tried, convicted of murder and is spending time in prison for the crime.

I also saw the case of the Colorado man who was shot by a notorious motorcycle gang in Colorado Springs. He went back to the bar with an AK47, two handguns, a knife, and four grenades to find the person that shot him and hold him for police. When he was confronted by hostile biker gang members he started shooting with his AK47 and some members were killed. After the melee he was arrested and tried for murder. The defense argued he was using self defense and the defendant was found not guilty of murder. Here is a case depending in what part of the country you are from the shooter could be considered guilty of a crime because he instigated the shooting by bringing weapons to a hostile environment. Many would think that you should have contacted the police and went with them to identify the Pellet Gun Shooter. However, the possibility still exists for the families of the bike gang members killed to file a lawsuit against the man for wrongful death. The decision doesn't have to be unanimous as in a murder trial. Case in point was the OJ Simpson case where Mr. Simpson was exonerated on the murder charge only to be sued by the family and lose in the lawsuit.

Now the interesting case on the reality show called "Another 48 hour mystery" and the episode was called: "A Case of Self Defense." If you watch the trial you can see that there were a lot of factors that complicated the husbands argument for self defense.

My point is from the point of using a weapon, to stopping when the attacker is down, to whether you should talk to the police, to the rounding up of witnesses to the event, to the securing of the scene by the police, and to the finding of physical evidence to support your claim all could hurt or help your case. People might say self defense is obvious and that just isn't always the case. What people consider are obvious cases of self defense can be weakened by a number of different factors. The ignorance of what to do during an confrontation, what to do after a confrontation, and what to say to the authorities could undo your case.

Anybody can say this person attacked me and it wasn't self defense. A Martial Artist downed three individuals who were trying to mug and rob him. The muggers called police and had him arrested for assault and then tried to sue him for their injuries. Both cases were thrown out of court. Another Martial Artist defended against a man with a gun. He was able to overcome the man with the gun and take it away. The police felt it was self defense but the DA say it as assault and had him arrested for 1st degree assault. After spending $25,000 in attorney fees the case was thrown out. Interestingly enough he told something to the police that could insinuate excessive force. He said he used crushing force against the attacker. If you know anything about self defense the concept of appropriate force for the situation is the standard. Could the DA have thought that by using this terminology that he was using excessive force even if the attacker had a gun? I don't know the answer but I suspect it is a possibility so my answer would have been yes.

Should the fear of being arrested stop you from using self defense and I think the answer is no. If you don't do something you or a loved one could be dead and once someone is killed there is no way to undo it. Inaction could be worse than action in a lot of cases. The key is what is going to be your intensity of reaction in comparison to the threat against you.

 

[The Big D]

Hmmmmmmmm, "say what" for that case and will surely need a cite to verify this account. I shall say aforehand, if the account is as stated I will NEVER again visit Colorado...maybe. ;-) (Bold is emphasis added.)

I also saw the case of the Colorado man who was shot by a notorious motorcycle gang in Colorado Springs. He went back to the bar with an AK47, two handguns, a knife, and four grenades to find the person that shot him and hold him for police. When he was confronted by hostile gang members he started shooting with his AK47. After the melee he was arrested and tried for murder. The defense argued he was using self defense and the defendant was found not guilty of murder.

 

[sirrduke2010]

Article about the story.

Here is the link to the article: Denver God Is His Co-Pilot - Westword. Colorado actually is pretty safe there are just some wild situation life other parts of the country.

My point was not to scare people away but just to realize that learning more about self defense would be helpful so that if you use self defense, you do it in an appropriate manner, and you don't find yourself in harms way for making the mistake of violating the laws in your area that apply to self defense.

 

[oldman45]

I think this was a well written posting. It points out just a few of the issues that can come out in legal discovery. There are many more than what has been mentioned.

However the posting serves to show us that self defense is in the eye of the individual and may not be in the eyes of the law.

 

[The Big D]

Thanks, sirrduke; I stand "corrected." It's hard to comprehend, however.

Be safe.

Here is the link to the article: Denver God Is His Co-Pilot - Westword. Colorado actually is pretty safe there are just some wild situation life other parts of the country.

My point was not to scare people away but just to realize that learning more about self defense would be helpful so that if you use self defense, you do it in an appropriate manner, and you don't find yourself in harms way for making the mistake of violating the laws in your area that apply to self defense.

 

[jtpur]

good post. when I was taking a law course in college the professor gave us a test and on the test was this question. "What is the law?"

The answer should surprise no one.. It almost seems impossible to answer as the question was no more nor no less that what I have in quotes. Here was the answer... " The law is whatever the judge says the law is and it is further defined by the verdict of the jury.

Self defense in Tarrant County, Texas may not be viewd the same way in Orange County California even if the facts were the same....Take those same facts and go to court in Manhattan, NYC and you may get a thrid view. Self defense like beauty is in the eye of the beholder as viewed by uninterested third parties.

 

[snub56]

I think a big problem is that many people rely more on hear say for what the law is. They listen to nitwits ramble on about what the police or prosecutors would have to do or say if a self defense situation should arise. Case in point, I do not remember how many times I have heard this little gem. " If you have to shoot an intruder make sure they fall inside and not outside. If they fall outside drag them back inside ". Now if I actually took this advice I could see myself sitting across from a detective trying to explain why I moved the body. Maybe it would be a good idea for some to hold off on buying a fourth or fifth handgun and invest in a little basic education .

 

[amazingflapjack]

Pondering these kinds of speculative questions is something I specifically avoid. I know when I fear for my life or someone else, and when the option of defusing the situation has been taken from my hands. In appllying critical thinking in consideration of the type of question/scenarios that you pose, it would seem to me that someone devoting a lot of thought in these areas was either trying to see what situation could arise that would provide the "oppurtunity" to shoot someone, and not face legal ramifications, or a person who was overly frightened about an immagined future situation, which, in either case, and in my view, would cause me to question whether they should carry a weapon without further training/counceling, etc. Again, my prospective, in a general way. Flapjack.

 

[cshoff]

good post. when I was taking a law course in college the professor gave us a test and on the test was this question. "What is the law?"

The answer should surprise no one.. It almost seems impossible to answer as the question was no more nor no less that what I have in quotes. Here was the answer... " The law is whatever the judge says the law is and it is further defined by the verdict of the jury.

Self defense in Tarrant County, Texas may not be viewd the same way in Orange County California even if the facts were the same....Take those same facts and go to court in Manhattan, NYC and you may get a thrid view. Self defense like beauty is in the eye of the beholder as viewed by uninterested third parties.

Well said. I've spent numerous hours with 3 different attorneys, a prosecutor, and a circuit judge going over defense of justification laws and that is pretty much the sum of it. Legal advice and legal opinion, no matter how well researched, doesn't necessarily mean legal fact.

I think a good resource for folks who would like to start getting a better understanding of how imperfect the concept of law vs. reality can be, would be Mas Ayoob's "Judicious Use of Force" presentation:

‪Massad Ayoob - Judicious Use of Force. Part [1]‬‏ - YouTube

‪Massad Ayoob - Judicious Use of Force. Part [2]‬‏ - YouTube

‪Massad Ayoob - Judicious Use of Force. Part [3]‬‏ - YouTube

‪Massad Ayoob - Judicious Use of Force. Part [4]‬‏ - YouTube

 

[sirrduke2010]

Thanks, sirrduke; I stand "corrected." It's hard to comprehend, however.

Be safe.

I totally agree and almost in every other region of the country this man would have been prosecuted and convicted.

 

[sirrduke2010]

Well said. I've spent numerous hours with 3 different attorneys, a prosecutor, and a circuit judge going over defense of justification laws and that is pretty much the sum of it. Legal advice and legal opinion, no matter how well researched, doesn't necessarily mean legal fact.

I think a good resource for folks who would like to start getting a better understanding of how imperfect the concept of law vs. reality can be, would be Mas Ayoob's "Judicious Use of Force" presentation:

‪Massad Ayoob - Judicious Use of Force. Part [1]‬‏ - YouTube

‪Massad Ayoob - Judicious Use of Force. Part [2]‬‏ - YouTube

‪Massad Ayoob - Judicious Use of Force. Part [3]‬‏ - YouTube

‪Massad Ayoob - Judicious Use of Force. Part [4]‬‏ - YouTube

Thanks. I have just been interacting on a site on linked in and have talked to some Martial Artists that are without a clue what the consequences of their actions could be. Many will go to jail thinking it was self defense. Some of the significant issues for them are not knowing when to stop and/or overdoing it or excessive force.

 

[walnutred]

I " If you have to shoot an intruder make sure they fall inside and not outside. If they fall outside drag them back inside ". .

I've often wondered where this idea came from. Over the years I've read more than one news article where the victim, usually a woman, shot an attacker in her place of residence and the attacker fled. Sometimes they died on the front lawn and sometimes they got a little farther before assuming room temperature. I’ve yet to read where the Police or Prosecutor said “Well, if they guy had dropped in the living room it would have been self-defense. However he made it to the front lawn so we’re charging her with manslaughter.”

I have to think that the location of the bullet holes, front of body or back of body, would carry more weight than where the body drops. At least in any sane environment, which I know we do not all live in. ;-D

 

[CAJUNLAWYER]

Just remember this-you get the best advice on the internet

 

[CelticSire]

"What is the law?"

The law is whatever the judge says the law is and it is further defined by the verdict of the jury.

After spending many, many hours in courtrooms, I can say that the following caveat should be added: "... in that courtroom in that particular case, and subject to being changed in both interpretation and application in all future cases and all levels of the appellate process."

(I once had a judge declare a search warrant invalid because, in his opinion, there was not enough probable cause for the original issuance. Which would have been understandable had he not been the judge who signed it originally.)