Fred Fuller
Moderator Emeritus
There's no way I can really offer a lot in the way of serious answers to the questions as posed- just general things to think about well in advance of ever finding yourself in such a situation.
Much of any conceivable response in such an event is covered in the notes below. Some here may not be familiar with them. My suggestion is that you GET familiar with them.
I also suggest you get VERY familiar with both the black-letter law AND the case law of self defense in your jurisdiction. Every place is different. You NEED TO KNOW what the real rules are in your jurisdiction- "if you think education is expensive, try ignorance."
Some might not be familiar wih ATSA-speak. Here's a brief glossary:
VCA- violent criminal actor
SODDI- some other dude did it
TODDI- THAT other dude did it
AOJ- ability, opportunity, jeopardy
ADEE- avoid, de-escalate/disengage, escape, evade
Study hard,
lpl
=====
http://www.teddytactical.com/archive/MonthlyStudy/2006/02_StudyDay.htm
Home of the National Tactical Invitational
American Tactical Shooting Association
To view us online, visit http://www.teddytactical.com/
Monthly Lecture: 02-2006
LEGAL PRINCIPLES IN THE
JUSTIFICATION OF THE USE OF FORCE
By: Skip Gochenour
PREAMBLE
The legal right to use force, even deadly force, in self-defense and the defense of others in the U.S. has been a settled discussion in the law since before the formal founding of the country. No other conclusion can be drawn by looking broadly at the law in the respective jurisdictions across the 400 year time span of European settlement to the present day.
With the exception of a brief period, largely the third quarter of the 20th Century, and a few locations, predominately those with populations enamored with the Franco-German political model, U.S. law has recognized the right of decent, productive, ordinary citizens to use force to interrupt unlawful violence directed against themselves or another person.
Viewed across the sweep of history for those centuries, it is reasonable to argue that the law has sought to define the circumstances that would allow finders of fact to determine the difference between the necessity of the defender citizen to strike a blow and a person who ignores or manipulates circumstance to mask an act laden with criminal intent.
A similar sweeping view would suggest good evidence exists to argue the current trend in the law is to correct some of the constructs bequeathed during that quarter century and promulgate law that returns to concepts long in practice, though largely lacking in specific legal definition.
By way of example, the law 50 years ago regularly restricted the justification of defense of others to those with whom the defender had a “special” relationship. Hence, the current “short-list” advocated in some currently operating training schools. The requirement for a defender to have a “special” relationship with the person defended is largely gone from defense of others law. Another shift in the law that began about 20 years ago is the redefinition of “immanent” from immediate to inevitable in the foreseeable future, as seen in the “batterer syndrome”.
When viewed from this landscape perspective, the law found itself with two problems to finesse. The first was to find a way to objectify a subjective occurrence. The law had to create models of fiction that could allow finders of fact to view the conduct of a defender with sufficient objectivity to sort an act of necessity from criminal intent. Because real-life experience teaches that infinite combinations of circumstance must be interpreted on an instance by instance basis, the law had to allow for sufficient “wiggle room” on the part of the defender and the finder of fact for the model to be useful. The result was the “reasonable and prudent man operating in the same or similar circumstance” standard.
The second problem was to provide the defender with access to a means of defensive tools. Returning to our landscape view, the issue of carrying weapons about in U.S. has largely been a process of trying to define who was fit to be trusted with such responsibility. While it was common for the law to preclude anyone without a license to carry concealed weapons, evidence would suggest that as a matter of practice, “people of good character” found with a concealed weapon were ignored. Enforcement was confined to those operationally defined as untrustworthy, with the definition varying by time and place.
The historical record suggests that the laws restricting the carrying of weapons in the south and west were designed to keep weapons out of the hands of former slaves. The laws restricting the carrying of weapons in the east and mid-west were written in response to labor violence connected to the influx of immigrants from southern and eastern European countries and the laws written in the far west were written to control Asian immigrant access to weapons.
The influence of criminal gang violence starting in the 2nd quarter of the 20th century and America’s flirtation with the rejection of the construct of individual responsibility led to a more universal enforcement of concealed carry restrictions and difficulty for the ordinary citizen to acquire a carry license.
By the 4th quarter of the 20th century, state legislatures were defining those fit to have a license to carry concealed weapons for employment in self-defense as anyone who by personal history and demonstration was unfit. The nearly universal three disqualifiers are: a felony conviction, a history of mental illness and a history of substance abuse. The common thread of these three categories is that each demonstrates in the individual with such history a proven lack of judgment requisite in a person walking about in society while armed. Not surprisingly, a person with a proven record in one of these three lapses of judgment, probably has one or more of the other two categories operant, whether a matter of record or not.
The rhetoric of those who reject the concept of personal responsibility aside, an argument can be made that the current trend in the law to recognize that any American citizen of good character and repute is entitled to the right of self-defense as well as a means to travel about with a means of defense, is more declarative of our commonality as Americans than all of the assertions of those who would plead us as pre-adolescents engaged in whining fits of jealousy.
With this backdrop, let’s look at the intent of the legal constructs that form the operating milieu of legally sufficient justification for using force against another person.
I. Assuming there is an incident where a defender is required to use force to reduce the threat to an acceptable level:
A. Police will be summoned by:
1. One of the parties to the incident.
2. An onlooker.
B. The occurrence of injuries and the increase in severity of injuries elevates the likelihood of police response and the bringing of charges against the defender.
C. The form of force and the level of injuries will determine the nature of charges the defender will face.
1. Homicide
2. Assault of various forms.
3. Intimidation of various forms
4. Unlawful restraint.
II. The Players and their roles.
A. Patrol Officers will make the initial response to the scene.
1. If there is no death or danger of death, they may handle the entire incident.
2. Collection and preservation of physical evidence will be cursory and concluded quickly.
3. Statements will be done largely at the scene. Follow-up with other witnesses will be cursory. Little attempt to identify and locate all potential witnesses is likely.
4. They will probably make any charging decisions at the scene and proceed with lodging of charges.
5. If the department is small, it is possible that patrol officers will be the totality of the investigation response, even in the event of a death.
6. If there is a death, or the possibility of death as a result of the incident, the patrol officers will likely hand the case to detectives.
NOTE: When patrol officer arrive they will likely ask, “What happened”? Your response is most likely admissible in a court proceeding, even if you have not been Mirandized. On the other hand, a response from you of “I would like to speak with my lawyer!” will probably subject you to a charging decision made without the benefit of your input. Patrol officers will not be inclined to wait for a lawyer to arrive, especially after mid-night. They will probably have the benefit of statements from the “victim” and any of his cohorts. The decision will probably be made with, or without your input.
B. Detectives
1. Short of a death, they will make the charging decisions.
2. The involvement of detectives likely means that more physical evidence will be collected, analyzed and interpreted.
3. Many more statements will be taken. Witnesses and potential witnesses will be identified, located and interviewed. Those interviews will be compared to with one another and with the physical evidence to create an interpretation of what likely occurred in the event.
4. If the incident involves a death, the evidence as well as their interpretation will be referred to the prosecutor for a charging decision.
NOTE: At some point detectives will want to take a statement from you. The involvement of detectives usually means the process is slowed down by the methodical nature of their work. There will usually be time for a lawyer to arrive to represent you. It is likely the involvement of detectives will allow time for you to provide your story for use in the charging decision.
C. Prosecutors
1. They will be involved in any charging decision where a death occurs. They will often be involved in charging decisions where serious bodily injury occurs.
2. In such cases, it is common for a prosecutor to be at the scene and at the station while processing and interviewing is in progress.
D. Defense lawyer
1. He will be your spokesman.
2. He can transmit your story to police and prosecutors in a fashion that the statement can not be attributed to you at the time of trail.
3. The charging decision can be made with the benefit of a lawyer for the state reviewing the evidence that includes your rendition of what occurred, presented by a trial lawyer who understands and can convey the meaning of the evidence at trial.
NOTE: Remember that once the decision to charge you is made, the impetus of the party’s shifts from trying to learn what happened to trying to win the case.
· This is now a contest between “Champions”.
· Facts become subservient to the rules of evidence and each champion will try to exclude that evidence which he deems harmful to his case.
· A trial is a form of ritualized fighting as in dueling, where the rules determine what is and is not “fair”.
· The truth will not necessarily set you free, but a lie, or apparent lie will lock you up!
E. Witnesses
1. Direct evidence witnesses.
2. Indirect evidence witnesses
3. Expert witnesses
4. Character witnesses
III. The Process
A. Reason and Rationality
1. Reason and rationality are constant themes in the American trial system.
2. Reasonable man standard
3. A reasonable and prudent man acting in like or similar circumstances standard.
4. Reasonable doubt standard.
5. Rational decision standard.
NOTE: Reasonableness varies with the specifics of the occasion. If retreat is required “if it can be accomplished in complete safety”, the ability of the Practitioner to reach a place of safety will be measured differently depending on whether the Practitioner is quick and agile or is infirmed.
Another issue of reasonableness arises with the past experiences of the Practitioner. A person who has experienced spousal battering, complete with the ritualistic aspect, and perceives a life threatening incident in the making, will have their actions viewed from that experience.
Likewise, specific knowledge, in the possession of a defender that an assailant has a reputation for violence can be considered by the finder of fact as the actions taken by the defender is reviewed.
B. Reasonable and prudent man.
1. Is a fictional legal character with abstract objective qualities that form a standard by which to review the subjective determinations and interpretations of a real person in an actual set of circumstances.
NOTE: The subjective portion of this standard will include any knowledge residing in the particular person asserting necessity in the specific occasion coupled with the fair conclusions one could draw from that cumulative knowledge and circumstance. That includes knowledge derived from experience, education and training.
The Practitioner must be prepared to articulate the totality of his knowledge and the operating circumstance and the derivative conclusions that formed his belief in the necessity of his actions.
C. Reasonable doubt.
1. Not a doubt constructed to avoid an unpleasant duty but one that arises fairly out of the evidence.
D. Rational decision
1. Comes from a careful review of the relevant facts and an application of the law.
2. Verdicts must be rational, not speculative.
E. Burden of proof
1. As a general rule, the burden of proof is always on the prosecution.
2. Are required to prove each element of an offense beyond a reasonable doubt.
3. Must refute any defenses
a. True defense
1) alibi
2) SODDI
3) TODDI
b. Affirmative defense
1) Justification
2) Prosecution must refute a claim of justification beyond a reasonable doubt.
3) Rare occasion where the defense has a burden of proof.
4) Must demonstrate the elements of justification to a preponderance of the evidence standard.
5) If the prosecution can refute one of the elements of justification beyond a reasonable doubt, he can prevent the defense from arguing justification to the jury.
6) The jury will be precluded from considering a claim of legal justification.
7) The defense can negate a claim of justification by introducing evidence inconsistent with an element of justification.
8) Eg. An assertion by the defendant that the gun discharged “accidentally.
Much of any conceivable response in such an event is covered in the notes below. Some here may not be familiar with them. My suggestion is that you GET familiar with them.
I also suggest you get VERY familiar with both the black-letter law AND the case law of self defense in your jurisdiction. Every place is different. You NEED TO KNOW what the real rules are in your jurisdiction- "if you think education is expensive, try ignorance."
Some might not be familiar wih ATSA-speak. Here's a brief glossary:
VCA- violent criminal actor
SODDI- some other dude did it
TODDI- THAT other dude did it
AOJ- ability, opportunity, jeopardy
ADEE- avoid, de-escalate/disengage, escape, evade
Study hard,
lpl
=====
http://www.teddytactical.com/archive/MonthlyStudy/2006/02_StudyDay.htm
Home of the National Tactical Invitational
American Tactical Shooting Association
To view us online, visit http://www.teddytactical.com/
Monthly Lecture: 02-2006
LEGAL PRINCIPLES IN THE
JUSTIFICATION OF THE USE OF FORCE
By: Skip Gochenour
PREAMBLE
The legal right to use force, even deadly force, in self-defense and the defense of others in the U.S. has been a settled discussion in the law since before the formal founding of the country. No other conclusion can be drawn by looking broadly at the law in the respective jurisdictions across the 400 year time span of European settlement to the present day.
With the exception of a brief period, largely the third quarter of the 20th Century, and a few locations, predominately those with populations enamored with the Franco-German political model, U.S. law has recognized the right of decent, productive, ordinary citizens to use force to interrupt unlawful violence directed against themselves or another person.
Viewed across the sweep of history for those centuries, it is reasonable to argue that the law has sought to define the circumstances that would allow finders of fact to determine the difference between the necessity of the defender citizen to strike a blow and a person who ignores or manipulates circumstance to mask an act laden with criminal intent.
A similar sweeping view would suggest good evidence exists to argue the current trend in the law is to correct some of the constructs bequeathed during that quarter century and promulgate law that returns to concepts long in practice, though largely lacking in specific legal definition.
By way of example, the law 50 years ago regularly restricted the justification of defense of others to those with whom the defender had a “special” relationship. Hence, the current “short-list” advocated in some currently operating training schools. The requirement for a defender to have a “special” relationship with the person defended is largely gone from defense of others law. Another shift in the law that began about 20 years ago is the redefinition of “immanent” from immediate to inevitable in the foreseeable future, as seen in the “batterer syndrome”.
When viewed from this landscape perspective, the law found itself with two problems to finesse. The first was to find a way to objectify a subjective occurrence. The law had to create models of fiction that could allow finders of fact to view the conduct of a defender with sufficient objectivity to sort an act of necessity from criminal intent. Because real-life experience teaches that infinite combinations of circumstance must be interpreted on an instance by instance basis, the law had to allow for sufficient “wiggle room” on the part of the defender and the finder of fact for the model to be useful. The result was the “reasonable and prudent man operating in the same or similar circumstance” standard.
The second problem was to provide the defender with access to a means of defensive tools. Returning to our landscape view, the issue of carrying weapons about in U.S. has largely been a process of trying to define who was fit to be trusted with such responsibility. While it was common for the law to preclude anyone without a license to carry concealed weapons, evidence would suggest that as a matter of practice, “people of good character” found with a concealed weapon were ignored. Enforcement was confined to those operationally defined as untrustworthy, with the definition varying by time and place.
The historical record suggests that the laws restricting the carrying of weapons in the south and west were designed to keep weapons out of the hands of former slaves. The laws restricting the carrying of weapons in the east and mid-west were written in response to labor violence connected to the influx of immigrants from southern and eastern European countries and the laws written in the far west were written to control Asian immigrant access to weapons.
The influence of criminal gang violence starting in the 2nd quarter of the 20th century and America’s flirtation with the rejection of the construct of individual responsibility led to a more universal enforcement of concealed carry restrictions and difficulty for the ordinary citizen to acquire a carry license.
By the 4th quarter of the 20th century, state legislatures were defining those fit to have a license to carry concealed weapons for employment in self-defense as anyone who by personal history and demonstration was unfit. The nearly universal three disqualifiers are: a felony conviction, a history of mental illness and a history of substance abuse. The common thread of these three categories is that each demonstrates in the individual with such history a proven lack of judgment requisite in a person walking about in society while armed. Not surprisingly, a person with a proven record in one of these three lapses of judgment, probably has one or more of the other two categories operant, whether a matter of record or not.
The rhetoric of those who reject the concept of personal responsibility aside, an argument can be made that the current trend in the law to recognize that any American citizen of good character and repute is entitled to the right of self-defense as well as a means to travel about with a means of defense, is more declarative of our commonality as Americans than all of the assertions of those who would plead us as pre-adolescents engaged in whining fits of jealousy.
With this backdrop, let’s look at the intent of the legal constructs that form the operating milieu of legally sufficient justification for using force against another person.
I. Assuming there is an incident where a defender is required to use force to reduce the threat to an acceptable level:
A. Police will be summoned by:
1. One of the parties to the incident.
2. An onlooker.
B. The occurrence of injuries and the increase in severity of injuries elevates the likelihood of police response and the bringing of charges against the defender.
C. The form of force and the level of injuries will determine the nature of charges the defender will face.
1. Homicide
2. Assault of various forms.
3. Intimidation of various forms
4. Unlawful restraint.
II. The Players and their roles.
A. Patrol Officers will make the initial response to the scene.
1. If there is no death or danger of death, they may handle the entire incident.
2. Collection and preservation of physical evidence will be cursory and concluded quickly.
3. Statements will be done largely at the scene. Follow-up with other witnesses will be cursory. Little attempt to identify and locate all potential witnesses is likely.
4. They will probably make any charging decisions at the scene and proceed with lodging of charges.
5. If the department is small, it is possible that patrol officers will be the totality of the investigation response, even in the event of a death.
6. If there is a death, or the possibility of death as a result of the incident, the patrol officers will likely hand the case to detectives.
NOTE: When patrol officer arrive they will likely ask, “What happened”? Your response is most likely admissible in a court proceeding, even if you have not been Mirandized. On the other hand, a response from you of “I would like to speak with my lawyer!” will probably subject you to a charging decision made without the benefit of your input. Patrol officers will not be inclined to wait for a lawyer to arrive, especially after mid-night. They will probably have the benefit of statements from the “victim” and any of his cohorts. The decision will probably be made with, or without your input.
B. Detectives
1. Short of a death, they will make the charging decisions.
2. The involvement of detectives likely means that more physical evidence will be collected, analyzed and interpreted.
3. Many more statements will be taken. Witnesses and potential witnesses will be identified, located and interviewed. Those interviews will be compared to with one another and with the physical evidence to create an interpretation of what likely occurred in the event.
4. If the incident involves a death, the evidence as well as their interpretation will be referred to the prosecutor for a charging decision.
NOTE: At some point detectives will want to take a statement from you. The involvement of detectives usually means the process is slowed down by the methodical nature of their work. There will usually be time for a lawyer to arrive to represent you. It is likely the involvement of detectives will allow time for you to provide your story for use in the charging decision.
C. Prosecutors
1. They will be involved in any charging decision where a death occurs. They will often be involved in charging decisions where serious bodily injury occurs.
2. In such cases, it is common for a prosecutor to be at the scene and at the station while processing and interviewing is in progress.
D. Defense lawyer
1. He will be your spokesman.
2. He can transmit your story to police and prosecutors in a fashion that the statement can not be attributed to you at the time of trail.
3. The charging decision can be made with the benefit of a lawyer for the state reviewing the evidence that includes your rendition of what occurred, presented by a trial lawyer who understands and can convey the meaning of the evidence at trial.
NOTE: Remember that once the decision to charge you is made, the impetus of the party’s shifts from trying to learn what happened to trying to win the case.
· This is now a contest between “Champions”.
· Facts become subservient to the rules of evidence and each champion will try to exclude that evidence which he deems harmful to his case.
· A trial is a form of ritualized fighting as in dueling, where the rules determine what is and is not “fair”.
· The truth will not necessarily set you free, but a lie, or apparent lie will lock you up!
E. Witnesses
1. Direct evidence witnesses.
2. Indirect evidence witnesses
3. Expert witnesses
4. Character witnesses
III. The Process
A. Reason and Rationality
1. Reason and rationality are constant themes in the American trial system.
2. Reasonable man standard
3. A reasonable and prudent man acting in like or similar circumstances standard.
4. Reasonable doubt standard.
5. Rational decision standard.
NOTE: Reasonableness varies with the specifics of the occasion. If retreat is required “if it can be accomplished in complete safety”, the ability of the Practitioner to reach a place of safety will be measured differently depending on whether the Practitioner is quick and agile or is infirmed.
Another issue of reasonableness arises with the past experiences of the Practitioner. A person who has experienced spousal battering, complete with the ritualistic aspect, and perceives a life threatening incident in the making, will have their actions viewed from that experience.
Likewise, specific knowledge, in the possession of a defender that an assailant has a reputation for violence can be considered by the finder of fact as the actions taken by the defender is reviewed.
B. Reasonable and prudent man.
1. Is a fictional legal character with abstract objective qualities that form a standard by which to review the subjective determinations and interpretations of a real person in an actual set of circumstances.
NOTE: The subjective portion of this standard will include any knowledge residing in the particular person asserting necessity in the specific occasion coupled with the fair conclusions one could draw from that cumulative knowledge and circumstance. That includes knowledge derived from experience, education and training.
The Practitioner must be prepared to articulate the totality of his knowledge and the operating circumstance and the derivative conclusions that formed his belief in the necessity of his actions.
C. Reasonable doubt.
1. Not a doubt constructed to avoid an unpleasant duty but one that arises fairly out of the evidence.
D. Rational decision
1. Comes from a careful review of the relevant facts and an application of the law.
2. Verdicts must be rational, not speculative.
E. Burden of proof
1. As a general rule, the burden of proof is always on the prosecution.
2. Are required to prove each element of an offense beyond a reasonable doubt.
3. Must refute any defenses
a. True defense
1) alibi
2) SODDI
3) TODDI
b. Affirmative defense
1) Justification
2) Prosecution must refute a claim of justification beyond a reasonable doubt.
3) Rare occasion where the defense has a burden of proof.
4) Must demonstrate the elements of justification to a preponderance of the evidence standard.
5) If the prosecution can refute one of the elements of justification beyond a reasonable doubt, he can prevent the defense from arguing justification to the jury.
6) The jury will be precluded from considering a claim of legal justification.
7) The defense can negate a claim of justification by introducing evidence inconsistent with an element of justification.
8) Eg. An assertion by the defendant that the gun discharged “accidentally.
The officer who trained us was a very pragmatic person, quite the realist and no nonesense. He knew his way around a courtroom and a bit of psychiatry surprisingly.