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Self-defense in law
Organichu
poopspeesRegistered User regular
poopspeesRegistered User regular
note: this is not about the Trayvon Martin case. I'd really prefer it not be cited in this discussion because, as relevant as it is, it's also divisive and incendiary and it's got its own thread. I gave this a few days to simmer down so hopefully we can have this discussion without it being too hot.
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One of the common sentiments in the wake of the recent verdict has been 'whether or not this ruling was correct, the laws never should have been what they were in the first place'. Well, I'm wondering what they should be.
i think it's a safe assumption that most people advocate for- to some extent- a legal principle of self-defense. But what do you think constitutes a valid claim of self-defense? Should the invoker have to have been free of any culpability w.r.t. the conflict? Or do you place more stock in the broader requirement of the invoker having not been the person to escalate the conflict to its end?
It's worth noting, I think, that this is definitely a question with a practical dimension. Due to the nature of violent encounters, sometimes only one story will be represented in a court of law. Because of that, maybe there has to be some weight given to the case that needs to be proven against the defendant.
These are just some random bits people can grab on to and discuss. I'd love to see an active discussion about the gamut, I guess, of this topic. How do we legally empower our citizens to defend themselves (here I am not referencing gun politics but the broader concept- it's up to y'all whether you want to mention a specific exception for gun stuff) while holding all participants responsible for their role in violent incidents?
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One of the common sentiments in the wake of the recent verdict has been 'whether or not this ruling was correct, the laws never should have been what they were in the first place'. Well, I'm wondering what they should be.
i think it's a safe assumption that most people advocate for- to some extent- a legal principle of self-defense. But what do you think constitutes a valid claim of self-defense? Should the invoker have to have been free of any culpability w.r.t. the conflict? Or do you place more stock in the broader requirement of the invoker having not been the person to escalate the conflict to its end?
It's worth noting, I think, that this is definitely a question with a practical dimension. Due to the nature of violent encounters, sometimes only one story will be represented in a court of law. Because of that, maybe there has to be some weight given to the case that needs to be proven against the defendant.
These are just some random bits people can grab on to and discuss. I'd love to see an active discussion about the gamut, I guess, of this topic. How do we legally empower our citizens to defend themselves (here I am not referencing gun politics but the broader concept- it's up to y'all whether you want to mention a specific exception for gun stuff) while holding all participants responsible for their role in violent incidents?
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The burglar / invader failing to retreat when warned, advancing on the resident when warned, having issued some sort of threat to the home owner (either at the time, or a previous threat, like an ex), or a situation where a warning would reasonably compromise the ability for the resident to defend themselves would be considered a legitimate threat. Even in that situation, the defender should still bear some liability if they respond in an unsafe or excessive manner that results in injury or death of others (i.e. shoot bystanders / neighbors through a wall).
In general, outside the 'burglar in the home' situation, I think that claims of self defense should inform on the charges / sentence the defender receives, but in general they should be held culpable if their actions directly provoked or escalated an incident, or if they were prevented with a reasonable opportunity to withdraw or deescalate the incident and didn't take it. Provoking or escalating an incident, when not an in-kind response to a legitimate threat, should shatter any shield of immunity from prosecution. This, of course, is going to be very subjective, and in cases of self-defense resulting in death it'll often be based only on one party's representation of the incident.
Outside of the home, I also believe that claims of self defense should only be acceptable when the defender responds with an appropriate level of force in response to a presented threat. This gets a bit sticky and subjective, as an appropriate response to a punch from some 6'6 bodybuilder would likely be different than the appropriate response to a punch from a 70 year old grandma. In those situations, it should be up to prosecutorial discretion and the jury to determine what is an appropriate (or excessive) level of force for the presented situation / perceived threat.
This is, of course, with regards to criminal prosecution only. I would say the only situation where a person should be immune to civil suit would be when the attacker entered a place of residence unlawfully, the defender had no opportunity to retreat, and presented as an attacker when warned / issued a threat.
Yeah, while I don't disagree with your feeling, it is really hard to point to causes or even if it a phenomena that actually objectively exists. Very different cultures, though CA sure seems to have a lot of questionable office involved shootings, they don't have the same crazyish civilian stuff.
But I think that the primary factor in determining whether self-defense can be used as a legal defense is the reasonable necessity you were talking about.
For example: In Elki's new thread wherein he wants to catalogue all shooting fatalities in the U.S. for one week(sure to be a super depressing read), there was this incident(in spoilers for length):
Dallas police were called to a burglary on Conner Drive in Pleasant Grove at about 10 p.m. Wednesday night after a neighbor reported seeing someone breaking into a home.
Officials said two officers, trainee Jamal Robinson and field training officer Sr. Cpl. Mark Meltabarger, arrived at the home and spotted someone inside the dark house using a flashlight.
The officers ordered the man to come outside and surrender, and it appears that he was complying when he suddenly began yelling and walking in a circle. Police said the man, who was later identified as 19-year-old Gerardo Pinedo, dropped to his knees and curled up into a fetal position as he struck the ground with his fists.
As Meltabarger reached for his stun gun to subdue Pinedo, the man threw his phone at Meltabarger's head, jumped up and charged at Robinson, police said.
Robinson retreated until he was up against a chain link fence. As Pinedo touched him, Robinson, fearing for his life, fired his gun, police said.
An ambulance rushed Pinedo to Baylor Medical Center in Dallas, where he underwent surgery before he died at about 8:30 a.m. Thursday. Neither of the officers were hurt.
Neighbor Jesus Vidales said Pinedo wasn't a burglar and that the home belonged to Pinedo's family. Vidales said the family had moved out while a foundation problem was repaired and that Pinedo had been visiting him earlier in the evening, where they had been drinking.
"Once he got too drunk, I told him and the other guy to go to his old house. They probably thought it was a burglar because he was drunk and screaming," Vidalis said. "They shot because he attacked. He attacked because he was drunk. He's an angry drunk, I guess."
Trainee Robinson has been with the Dallas Police Department for about 10 months and has been out of the academy for seven weeks. Field training officer Meltabarger has been with the department for nearly 14 years.
Police said Pinedo was not armed. Both the burglary and the officer-involved shooting are under investigation.
Now after reading that, did Robinson probably feel like harm was imminent? I'd wager so. But when a person has other options at their disposal(physical force, stun gun, pepper spray), leaping right to the fatal option takes self defense right off the table for me, especially for someone with police training.
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Starting at the top, I do believe that there is a general right to self-defense.
The California criteria are:
- Protecting your home or property from vandalism or theft
- Protecting your person from harm
- Protecting another person from harm
(Protecting somebody else's property is not a valid motivation, largely because of the misunderstandings that could occur. Just because you don't know the guy lurking around your neighbor's house doesn't mean he doesn't have a right to be there.)
It's an affirmative defense, so the defendant has to demonstrate it. (I believe the legal standard is that they must show a preponderance of evidence, but don't take that as gospel.)
It's based on a reasonable person test of the situation involved. Would a reasonable person believe that the defendant's life or property was in jeopardy?
You're not allowed to shoot somebody in retreat.
I think this is all fairly reasonable, personally.
Where Florida failed in the Zimmerman case was that Zimmerman chose to pursue because "these assholes, they always get away." That's not protecting yourself anymore, that's choosing to be a vigilante because you feel that our legal institutions are ineffective at punishing criminals.
the "no true scotch man" fallacy.
^^^^^^^^^^ this
the "no true scotch man" fallacy.
mcdermott I haven't been hanging around D&D long, but you seem quite knowledgeable about this topic.
How likely is a jury to confuse that distinction between stopping the attack and eliminate the risk? Surely some would equate one with the other?
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I know that most 'defense of property' cases overlap with 'reasonable threat of GBH', but in a hypothetical pure 'defense of property' situation, where the only risk is to property, there should be an obligation by the defender to provide the intruder an opportunity to surrender or retreat.
The only realistic situations I can think of would be situations where someone arrives to their empty home and sees an intruder inside (before entering) or someone sees an intruder in an out-building / in their vehicle outside their home. In those cases though, I think that the property owner should be expected to contact authorities and allow them to intervene instead of entering and escalating the situation. If the property owner does escalate the situation, they should be held to the same (theoretical) obligations as law enforcement in providing the intruder an opportunity to surrender until authorities arrive.
I understand that the authorities are not always available in a timely manner, and I would fully expect any prosecutor or jury to give the property owner the benefit of the doubt, but I still feel very uneasy about any laws that automatically permit use of deadly force in cases where there is no risk of GBH to someone.
Overall though, I find most self defense laws in and of themselves to be pretty ok. It's more the uneven enforcement that bugs me. You can't say a white rancher who shoots someone breaking into his barn is treated the same as a black guy in Compton who shot someone breaking into their car / garage. But those problems are more than the specific law itself. But, that's not a problem with the law, it's a problem with enforcement / prosecution / the judicial system.
For instance, I've never broken a bone. Never lost teeth. Never been in a real fight, really. So when I hear prevent great bodily harm, and I see a broken jaw as a consequence, I just think, "Well that sucks, but it'll probably heal", because I don't know better. Whereas the juror next to me, who might be someone who's been attacked, or some MMA guy who's been injured, hears those things and comes to a completely different conclusion than I do.
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I don't know a better standard to use though, and its always going to be subjective. Even size or strength or age aren't perfect indicators. That's why a jury is used with the reasonable standard.
there are several huge problems with your line of thinking. Lets start with the basic one. Are you assuming that because a person has had police training, they are good at hand-to-hand combat? This is a ridiculous assumption to make. You have no idea how much martial arts training the officer has, and the officer had no idea how much training the deceased suspect has. He is up against a fence with a guy he doesn't know and has no idea if he can win a fight with him, and you want to change the rest of his life because you assume he has met an arbitrary proficiency based simply on him being a police officer.
2nd, many fatal shootings of police officers come from being disarmed and shot with their own weapons. It may even be most fatal shootings. If he had his gun drawn as opposed to a stun gun, then the gun is in play. If he doesn't fire immediately, the suspect will attempt to take control of the gun and possibly shoot both officers. At that point, he didn't just have a legal right to fire, he had a moral duty to fire.
3rd, i believe you are setting up a major moral hazard. If police need to wait until someone inflicts injuries on them before they respond with lethal force, or if they have to go through a full check list before lethal force is authorized, then by necessity police will use greater than necessary non-lethal force at the first hint of noncompliance. This is a far greater crime to society. There have been too many people unnecessarily tazed or beaten to death who didn't assault officers, whose only real crime was minor noncompliance, for me to care at all about someone that directly attacked two.
Yes. The possibility of property loss doesn't allow you to shoot someone, or we could walk up to Bernie Madoff and take off the top of his head
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Yeah, it's hard to justify shooting someone that's fleeing from you in the back.
I'm pretty sure most states consider that murder.
Self-defense is a temporary exception because you could die and have no recourse. Using violence on another is a violation of that person's fundamental rights outside that narrow exception. You don't get to shoot someone because you're worried you might not get your property back.
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I'm personally fine with the use of deadly force in that situation.
I recognize that this is a somewhat controversial statement, but I don't see a problem here...
...as long as we don't let devils hide in the details. We should have sensible legal tests for questions like "How did you know that was your stuff?" and "Did you put passers-bye at undo risk?"
A property owner comes out into his living room to see it being burglarized, and the burglar tries to escape through the window? I don't really have a problem with the property owner shooting him.
the "no true scotch man" fallacy.
I'm not assuming that a person is competent in martial arts just because they're a police officer.
Also, the article doesn't really say whether or not the rookie had his gun drawn at that time or not, so all we can do is speculate about that.
And I'm also not saying that the officer must be injured before responding with deadly force. I'm saying that they should respond with other avenues first. I'm sure that part of this investigation will be whether or not the gun use was justified, and that's as it should be.
If anything, I'm more critical of the vet who was reaching for his stun gun anyway, yet couldnt produce it before his partner was cornered and under threat of assault.
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Cops have very set procedures and training for exactly when it is ok to shoot. In a situation like that they still have a moral and professional duty to try to apprehend the person alive even if it means risk to themselves. They should try to minimize the risk by giving very clear instructions on what to do and following procedure carefully. But they do not have the power or the luxury of shooting anyone who might be a threat.
Basically if a cop has his gun drawn and you don't do exactly what he says expect to be shot because anything else could be interpreted as a hostile action.
In your house you can do pretty much whatever you want to an intruder. I do find it somewhat disturbing how bloodthirsty some people are at the idea of being able to kill someone legally.
Stuff is just stuff. IF you have a house you probably also have homeowners insurance. Ending a human life over stuff seems cheap and frankly a little sick.
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The difference is material things can be replaced physical well-being oftentimes can't. If someone steals your bigscreen tv you're not going to be stuck in a wheelchair for life but if they shot you you might very well be.
Your philosophy basically makes a rich person 500 times the human being a poor person is since they have so much more "life" to lose.
Not really.
I'm not sure where you or McDermott are getting you information, but this is a joke. Even at the zenith of his career, when he admitted to trying to kill an opponent in the ring, George Foreman - a person much, much stronger than the average adult - was unable to do so even with direct blows to the head. There are rare circumstances where a direct thrust of force to a person's chest can cause cardiac arrest (this has only ever happened, as far as we know, with baseballs - but it's not much of a stretch to infer that the same thing could happen with a fist or other blunt object).
Bones aren't fragile. Even bones that have been adapted for limited ablative function, like some rib bones, require a surprising amount of KE to actually break - and the bones in your hand are going to break or crack before they break a jaw bone (you might dislocate a jaw bone, but breaking it by punching it? Not unless you're punching an infant).
Simply falling from standing will never, ever kill a human being, unless you fall onto a sharp object. Even when you're talking about the few extreme examples where 800~ pound people have fallen over in their homes, they didn't die on impact.
obviously i'm not hearkening back to some far-gone halcyon of equality when everyone understood each other. but this topic really makes me think about jury selection and stuff like that. while i am a p librul guy and averse to conflict, i've also lived in some rough areas where shit popped off almost every day. i know i'd feel pretty uncomfortable having my self-defense claim judged by a dude who has never in his life been in a scary situation or had violence as a specter over his behavior.
food for thought, though i guess i don't see a solution to it.
And it had nothing to do with the amount. If a mugger threatened my life over $2.00 in my pocket, I would rather kill him if possible than give up the two bucks. I feel the same about anyone that breaks into the sanctity of one's home where kids might be sleeping, regardless of what they were stealing.
Death from a single punch or falling isn't common, but it happens. A reasonable person getting in a fight or getting jumped has every reason to fear serious injury. Especially because their attacker won't necessarily punch once and back off.
Being threatened with violence for money is not equivalent to somebody stealing money from you by stealth - the former has explicitly voiced a willingness to cause you harm. He has opened up the door to physical harm to your person or your life.
This is very different, morally and legally, from the scenario of a burglar fleeing your home with your belongings in his hand. In the latter scenario, he has given no indication that he is going to physically harm you.
The point of contention in this thread is not whether you have a right to self-defense in response to a threat. Everybody here agrees that you do. The point of contention in this thread is whether you have a right to defense of your property even when there's no reason for you to believe that your physical person is threatened.
the "no true scotch man" fallacy.
I'd like you to cite a single example of one adult punching another adult and breaking any bone at all. Even a rib bone.
i have had my eye orbital shattered with one punch
I - He didn't say property was an extension of your person. He said self-ownership and self-ownership of labor is the basis of exclusive ownership of anything else in a state of nature (aka property rights) which is mitigated and regulated by entering into a civil society.
II - Irrelevant. The point in question is whether there is the possibility of reparation. You can get your property back, you can't get your life back. Once you aren't in mortal peril, you don't have the justification.
III - That's an inaccurate reading regarding slavery. He said that in order to truly make yourself a slave you have to have the power to legitimately forfeit your own life. Since Locke had previously rejected the legitimacy of taking a life including your own he is building on this to say that even voluntarily entering into slavery is not permissible. The wording is complex but: So he can't (legitimately) take away the life of another or his own life. And the "legislature" lacks the power to violate his liberty in such a fashion. The next sentence is where this idea come from: But he follows it immediate with: The state of war is basically when shit is bad for Locke.
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I've had my nose broken with a single kick. I've broken a nose with a punch.
People die sometimes from just one adult hit.
Sometimes they go 'Ow', sometimes terrible things happen.
If real life was D&D, you would be rolling 1d100 for damage on most attacks. That's what games don't teach you.