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Author Topic: Self-Defense and other law related to martial arts  (Read 50658 times)
Crafty_Dog
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« Reply #50 on: May 23, 2008, 01:45:58 PM »

Pasting Scott's post from the Kerambit thread here:
==========

Some reading:

Self-defense

Common law principles

 Deadly force used in self-defense is justified at common law when:  The defendant is a non-aggressor and the defendant reasonably believes that deadly force is necessary to repel an imminent, unlawful, and deadly attack by the other person.  This set of elements also fit the structure of a justification defense, namely: (1) Proportionality – the force used is proportional and reasonable in relation to the harm threatened.  (2) Necessity – the force used is necessary to protect the interest at stake.  Deadly force generally means either force likely to cause death or serious bodily harm.  In order to justify the use of self-defense on the basis of deadly force, you must be trying to repel deadly force in response.  You can use deadly force to defend against potential crimes other than murder.

 At common law, if you act in justifiable self-defense, you’re not guilty of any crime.  Even if you prove all the elements of the crime of murder, if you have a justification, then you’re not guilty.  Even if you have the intent to kill that usually constitutes malice, you may not be guilty of the offense.

 The “aggressor” issue

 You can’t use deadly force in self-defense if you’re the aggressor at the time of the conflict.  In order to find the aggressor, we are looking for an “affirmative unlawful act reasonably calculated to produce” a potentially fatal fight.  Self-defense cannot be claimed by someone who deliberately puts himself in danger.

 “Reasonable belief” at common law

 Say a defendant shoots someone believing they have a real gun when the gun is actually fake.  Under the reasonable belief requirement, even though the person couldn’t or wouldn’t have killed the defendant, the defendant still is acquitted even though what he did was objectively wrong.  However, if, on the other hand, the gun was obviously a toy then the defendant loses the self-defense claim because the belief about the threat wasn’t objectively reasonable.

 People v. Goetz – The reasonable person standard for self-defense as justification is an objective standard.  Goetz felt that the prosecution gave an objective standard whereas the standard should have been subjective based on the statute.  The intermediate appellate court argued that the emphasis in the phrase “he reasonably believes” is on “he”.  That becomes a subjective standard because we’re not interested in what a reasonable person would do, but rather whether the defendant thought he was doing a reasonable thing.

 The thing is that the defendant will obviously think that what he’s doing is reasonable.  But the defendant may be an unreasonable person.

 The Court of Appeals of New York rules that the statute was meant to create an objective standard.  But how objective did the legislature intend it to be?  Who is that reasonable person?

 
How can it be justifiable to kill an objectively innocent person?  We might excuse someone for it, but maybe it wouldn’t be justified.  The common law says, on the other hand, that such an act would not be justified, but rather excused.  Dressler argues that this could create a situation where two people could justifiably kill each other.

State v. Wanrow – The jury may “stand in the shoes” of the defendant in assessing whether his or her conduct was justified.  The basic issue in this case is bringing gender into the discussion of the reasonable person.  What does this case stand for?  Does this mean that a woman who uses self-defense must be judged by the standard of a reasonable woman, or must she be judged by the objective standard of a reasonable person?  The ruling says that the defendant’s actions must be judged subjectively, not objectively.  After this case, case law has clarified this result to mean that they use a “reasonable woman” standard.  The Model Penal Code chooses “designedly ambiguous” language to describe the standard of behavior: “a reasonable person in the actor’s situation”.

State v. Norman – If North Carolina applies the common law, why isn’t Norman entitled to a self-defense claim?  It rests on the meaning of the word “imminent”.  At common law, this term means “just about right now”.  We’re talking seconds, not minutes or hours or days or weeks.  Since that’s not what we have in Norman, the Supreme Court of North Carolina represents the traditional view.  Under the ruling of this case and in most common law jurisdictions, Norman would not even be entitled to an instruction on the justification of self-defense.

 Does syndrome evidence arguably turn a justification defense into an excuse?

 “Self-protection” and the Model Penal Code

 § 3.04(2)(b)(i) deals with one limitation on the use of deadly force: the defendant mustn’t provoke the use of force with the purpose of causing death or serious bodily injury.  The Model Penal Code says that § 3.04(2)(b)(ii) says that you can’t use self-defense if you can retreat, except if you’re in your own home or you’re a public officer.  The Model Penal Code, as well as common law, treats human life very, very highly.  The sanctity of human life is valued so highly that the law doesn’t even want “bad guys” killed unless it’s absolutely necessary.  Thus, it’s very difficult under the Model Penal Code and at common law to win on a self-defense claim.

 The Model Penal Code doesn’t focus on the amount of time before the actor will be killed, rather, it focuses on the actor to figure out if it is necessary now to use deadly force against the victim.

 § 3.04.  This statute uses the word “immediately necessary” rather than “imminent”.  The provision is general.  The deadly force provision is § 3.04(2)(b).  Even if you meet § 3.04(1), there are additional conditions in order for a valid justification to be constructed.

 If an actor’s belief is sincere but reckless or negligent, the actor isn’t justified as far as reckless or negligent offenses.  If the defendant was negligent in believing that a toy gun was actually real, then under the Model Penal Code the defendant wouldn’t be guilty of murder.  The defendant would be guilty of negligent homicide if the defendant was negligent, and the defendant would be guilty of manslaughter if the defendant was reckless.

 What the Model Penal Code does that is dramatically different from common law is that it doesn’t like the “all-or-nothing” proposition.  In the three situations above, the defendant is not guilty in the first case, not guilty in the second case, but fully guilty in the third case.  On the other hand, the Model Penal Code allows conviction for a lesser crime in the third case.

 Necessity

 
Three elements are required in order to show necessity: (1) The act charged must have been done to prevent a significant evil.  (2) There must have been no adequate alternative.  (3) The harm caused must not have been disproportionate to the harm avoided.

 Nelson v. State – There’s a balancing test here between the harm actually caused and the harm averted by the act.  That’s the very definition of necessity.

 The drafters of the Model Penal Code § 3.02 thought the necessity defense was essential because we want to encourage sort of “efficient breach” of the law.  If obeying the law involves greater harm to society than breaking the law, we want people to break it.  This is kind of a belt to keep the legislature’s pants from falling down in exceptional situations.  If the legislature would have said “Yes, break the law in this case”, then we want to let the offender off the hook.  It would be irrational to want people to obey the law if we believed that the legislature in a certain situation would say “do break the law” because that would result in a better outcome for society than obeying the law.

 Although necessity (or the “choice of evils” justification defense) is typically thought of as a utilitarian justification because of its balancing aspect, it can also be viewed in non-utilitarian terms by comparing the moral value of one choice of action against another.

 A defendant must actually believe that his conduct is necessary to avert a greater evil (and not an equal or lesser evil).  The necessity defense doesn’t help you if you recklessly or negligently created the necessity.

 The Queen v. Dudley and Stephens – This is the single most important case in Anglo-American jurisprudence to deal with the following question: is it ever justifiable to kill an innocent person in order to save a greater number of innocent persons?  The court suggests that sometimes the law has to set up standards that we can’t really live up to.  Can we punish someone when we all would have done the same thing?

 If you’re a retributivist, then it is never right to kill an innocent person in order to save a greater number of innocent lives.  If you’re a Kantian, you believe that you must never use a person as a means to an end rather than as an end in itself.  That’s what Dudley and Stephens did with Parker: they used him as a means to an end, violating what Kant would say is a categorical imperative.

 Excuse

 Excuse focuses on the actor, not the act.  Excuse concedes that the act was bad, but there was something about the actor such that we’re willing to let them go without punishment.  When we use an excuse defense, the burden of proof is placed on the defendant.

 Bentham says that an excuse is a defense when their conduct was nondeterrable.  The only use for punishment, in a utilitarian view, is deterrence.  Therefore, if there is no value to punishment and only a net social cost, we shouldn’t punish.

 However, say there are some people who are genuinely undeterrable.  There may still be some utilitarian value in punishing an undeterrable person due to specific deterrence or incapacitation.  What about the general deterrence value in punishing an undeterrable person?  If we excuse an undeterrable person, someone else might get the wrong message.  Someone else might believe that they can convince a jury that they are undeterrable.  Generally speaking, they may be less likely to obey the law because they will perceive it as full of holes.

 Retributivists say that we have excuses because we don’t want to blame those who were not responsible for their actions.  To blame someone who is not responsible for his actions is a falsehood.  It is a matter of justice to excuse certain people even though they have caused some social harm.

 Excuse law is now explained almost exclusively by some sort of retributive theory rather than utilitarian theory.  Even the utilitarian argument has a retributivist aspect to it.

 Our theories of excuse are: (1) Utilitarian theories, (2) causation, (3) character, and (4) choice (personhood).

 Duress

 Duress is an excuse and not a justification.  Most jurisdictions treat it in this way.  At common law, duress is no excuse for murder.  In the Model Penal Code, however, there is no murder exception.

 United States v. Contento-Pachon – There are three elements of the duress defense, according to the court: (1) immediacy of the threat, (2) well-grounded fear of the threat, and (3) lack of escapability from the threat.

 Another way of describing duress as an excuse is that a person will be acquitted of any crime other than murder if: (1) the coercer issues an unlawful threat to imminently kill or grievously injure the defendant or another person, and (2) the defendant was not at fault in exposing himself to the threat.

 The court also says that a necessity defense suggests that there was no social harm on balance.   On the other hand, the court says that duress suggests there was no culpability.  The court therefore implies that necessity is a justification rather than an excuse.

 The Model Penal Code definition of duress is revolutionary compared to the common law.  It’s different from the common law definition in many different ways.  There is a limit to duress under Model Penal Code § 3.02: the threat listed is “unlawful force”.  Only humans can do unlawful things.  The Model Penal Code is like the common law in the fact that it limits the defense of duress to human threats.  However, under the category of necessity, the Model Penal Code would allow either natural or human threats.  The Model Penal Code is well aware of this.  It says that even if § 3.02 applies, § 2.09 may still apply if you’re dealing with a human threat.

 What’s different about the Model Penal Code provision on duress than the common law?  In the Model Penal Code, there need not be an imminent threat.  Also, under the Model Penal Code, a “kill or be killed” threat could work as an excuse: there is no murder exclusion.  Finally, it is a “person of reasonable firmness” standard.  It’s an objective rather than a subjective standard.

 People v. Anderson – At common law, duress was not a defense to murder.  Some intentional killings, if they are the result of provocation, reduce murder to manslaughter.  But this isn’t a heat of passion case.  Adequate provocation makes someone angry which makes them intentionally kill.  It’s a lot harder to control yourself when you’re very angry.  When we’ve very angry, our self-control is undermined.  But we don’t think one’s self-control is fully undermined by anger.  When you’re angry, you could do a lot of things other than kill.  You could vent your anger in some other way.

 Why couldn’t you have fear in place of anger in “heat of passion”?  Fear is an emotion that is like anger in that it makes self-control more difficult.  We may be able to empathize more with fear than with anger.

 Anderson’s point is that if you give a defense for killings caused by adequate provocation leading to anger leading to the intent to kill, then it follows that you should give a similar defense with fear in the place of anger.  Dressler seems to argue for just such a partial defense.

 The Model Penal Code would actually agree with Anderson, although they wouldn’t use duress to get there and they wouldn’t use the “heat of passion” excuse.  You would go straight to manslaughter based on the fact that the homicide was committed under “extreme emotional distress”.  The Model Penal Code necessity defense allows the intentional killing of an innocent person to save a greater number of lives.  In a Model Penal Code jurisdiction, you could have a complete defense.
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Crafty_Dog
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« Reply #51 on: June 03, 2008, 06:40:01 PM »

Man with gun is shot and killed instead
http://www.dailynews.com/ci_9453065?source=rss

A man who pointed a gun at his intended victim was shot by the victim instead, police said.
Rosalio DeLa Rosa, 22, and 17-year-old accomplice where in a market near Parthenia Street and Woodley Avenue on Sunday at around 12:55 a.m. when they became involved in a dispute with Anthony DeLa Cruz, police said.

During the argument, DeLa Rosa claimed his gang affiliation and asked DeLa Cruz "where you from?" DeLa Cruz denied any gang ties and left the market in his vehicle. DeLa Rosa and the juvenile followed DeLa Cruz in their vehicle, brandishing a gun at DeLa Cruz several times before using their vehicle to stop DeLa Cruz' vehicle.

As DeLa Rosa got out of his vehicle he pointed a gun at DeLa Cruz. DeLa Cruz, in fear for his life, fired his own gun at DeLa Rosa, striking him once and causing him and the gun to fall to the ground. The juvenile then picked up the gun and fired the weapon at DeLa Cruz, but it misfired. DeLa Cruz fired at the minor, striking him once in the torso.

DeLa Cruz fled the location and flagged down police. He was arrested.

DeLa Rosa and the minor were both taken to a local hospital where DeLa Rosa was pronounced dead. The minor was treated for his injury, booked for murder and is being held without bail. DeLa Cruz was booked on a manslaughter charge and is being held on $100,000 bail.

Anyone with information about this crime is asked to call Van Nuys Homicide Detectives M. Martinez or L. Lowande at (818) 374-0040. On off
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Crafty_Dog
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« Reply #52 on: July 13, 2008, 06:49:02 PM »

The mind boggles at the situation in the UK:

http://www.cato.org/pubs/policy_report/v26n2/cpr-26n2-1.pdf

 cry cry angry
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Crafty_Dog
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« Reply #53 on: July 16, 2008, 07:05:23 PM »

Well, pigs fly!!!  cheesy

'Have-a-go heroes' get legal right to defend themselves

By Richard Edwards, Crime Correspondent and Chris Hope, Home Affairs Correspondent

Last updated: 6:54 AM BST 16/07/2008

Home owners and “have-a go-heroes” have for the first time been given the legal right to defend themselves against burglars and muggers free from fear of prosecution.

They will be able to use force against criminals who break into their homes or attack them in the street without worrying that "heat of the moment” misjudgements could see them brought before the courts.

Under new laws police and prosecutors will have to assess a person’s actions based on the person’s situation "as they saw it at the time” even if in hindsight it could be seen as unreasonable.

For example, homeowners would be able stab or shoot a burglar if confronted or tackle them and use force to detain them until police arrive. Muggers could be legally punched and beaten in the street or have their own weapons used against them.

However, attacking a fleeing criminal with a weapon is not permitted nor is lying in wait to ambush them.

The new laws follow a growing public campaign for people to be given the right to defend themselves and their own homes in the wake of a number of high profile cases.

In 2000, Tony Martin, the Norfolk farmer, was sent to prison for manslaughter for shooting an intruder in his home.

Earlier this year, Tony Singh, a shopkeeper, found himself facing a murder charge after he defended himself against an armed robber who tried to steal his takings. During the struggle the robber received a single fatal stab wound to the heart with his own knife.

The Crown Prosecution Service eventually decided Mr Singh should not be charged.

Until now people have had to prove in court that they acted in self defence but the changes mean police and the Crown Prosecution Service will decide on cases before this stage.

Jack Straw, the Justice Secretary, said that people would be protected legally if they defend themselves "instinctively”; they fear for their own safety or that of others; and the level of force used is not excessive or disproportionate.

He added the changes in law were designed to ensure the criminal justice system was weighted in favour of the victim.

Mr Straw – and other Labour ministers – have previously repeatedly blocked attempts by opposition MPs to give greater protection to householders.

In 2004 Tony Blair promised to review the existing legislation after he admitted there was "genuine public concern” about the issue.

But his pledge was dropped weeks later after the then Home Secretary Charles Clarke concluded that the current law was "sound”.

Two Private Member’s Bills on the issue were tabled by the Tories around the time of the 2005 general election, but both were sunk by the Government.

In 2004, a Tory Bill designed to give the public the right to forcibly tackle burglars was also rejected.

The new self defence law, which came into force yesterday, is contained in the Criminal Justice and Immigration Act 2008 and was announced by Mr Straw last September.

He is understood to have decided new laws were necessary after he was involved in four "have-a go’’ incidents, which included chasing and restraining muggers near his south London home.

Opposition leaders said it offered nothing new and was merely the latest policy designed to appeal to core Tory voters.

In practice, householders are seldom prosecuted if they harm or even kill an intruder but the Act will give them greater legal protection.

Nick Herbert, the Shadow Justice Secretary, said: "This is a typical Labour con – it will give no greater protection to householders confronted by burglars because it’s nothing more than a re-statement of the existing case law.”

Mr Straw said: "The justice system must not only work on the side of people who do the right thing as good citizens, but also be seen to work on their side.

"The Government strongly supports the right of law abiding people to defend themselves, their families and their property with reasonable force. This law will help to make sure that that right is upheld and that the criminal justice system is firmly weighted in favour of the victim.

"Dealing with crime is not just the responsibility of the police, courts and prisons; it’s the responsibility of all of us. Communities with the lowest crime and the greatest safety are the ones with the most active citizens with a greater sense of shared values, inspired by a sense of belonging and duty to others, who are empowered by the state and are also supported by it – in other words, making a reality of justice.

"These changes in the law will make clear – victims of crime, and those who intervene to prevent crime, should be treated with respect by the justice system. We do not want to encourage vigilantism, but there can be no justice in a system which makes the victim the criminal."

It came as it emerged that homeowners could have to wait up to three days after reporting a crime to see a police officer, according to a leaked draft of the Policing Green Paper.

It sets out new national standards for local policing for all 43 forces cross England and Wales.

Callers to the police will be given set times within which officers will attend an incident.

The paper says that this will be "within three hours it if requires policing intervention or three days if there is less immediate need for a police presence."

However, the Home Office would not comment on the plans.

Have Your Say: Should have-a-go heroes get protection?
Story from Telegraph News:
http://www.telegraph.co.uk/news/news...hemselves.html
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Scotty Dog
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It's Only a flesh wound


« Reply #54 on: July 17, 2008, 05:20:42 AM »

I'm glad to see greater clarification of the UK law, but I'm fed up seeing Tony Martins name being used as a figure head of the right to Self Defence in the UK.

The man shot 2 teenagers in the back as they were running away, with an illegally held shotgun, has been diagnosed with Paranoid Personality Disorder & is an advocate of the BNP (British National Party, a racially motivated political party). He stirs up the kind of reactionist tabloid mentality that makes it difficult to argue intelligently for greater rights  sad
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"Cos Beliefs, are just that. They're nothing, they're how your taught and raised. That doesn't make them real...
Everything you've learned is in fact just learned & not necessarily true"

Bill Hicks
Crafty_Dog
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« Reply #55 on: July 23, 2008, 12:10:02 AM »

Knife carry law summary

Date updated: Aug 27, 2005 @ 1:28 pm

§134-51 Deadly weapons; prohibitions; penalty.

(a) Any person, not authorized by law, who carries concealed upon the person's self or within any vehicle used or occupied by the person or who is found armed with any dirk, dagger, blackjack, slug shot, billy, metal knuckles, pistol, or other deadly or dangerous weapon shall be guilty of a misdemeanor and may be immediately arrested without warrant by any sheriff, police officer, or other officer or person. Any weapon, above enumerated, upon conviction of the one carrying or possessing it under this section, shall be summarily destroyed by the chief of police or sheriff.

§134-52 Switchblade knives; prohibitions; penalty.

(a) Whoever knowingly manufactures, sells, transfers, possesses, or transports in the State any switchblade knife, being any knife having a blade which opens automatically
(1) by hand pressure applied to a button or other device in the handle of the knife, or
(2) by operation of inertia, gravity, or both, shall be guilty of a misdemeanor.
(b) Whoever knowingly possesses or intentionally uses or threatens to use a switchblade knife while engaged in the commission of a crime shall be guilty of a class C felony.

[§134-53] Butterfly knives; prohibitions; penalty.

(a) Whoever knowingly manufactures, sells, transfers, possesses, or transports in the State any butterfly knife, being a knife having a blade encased in a split handle that manually unfolds with hand or wrist action with the assistance of inertia, gravity or both, shall be guilty of a misdemeanor.

Admin note
There is no mention of Blade Length in Hawaii Law. More Information can be at http://pweb.netcom.com/~brlevine/sta-law.htm

This is from http://www.knife-expert.com

Hawaii Case Law:
- "'Other deadly or dangerous weapon' is limited to
instruments whose sole design and purpose is to inflict
bodily injury or death... A 'diver's knife' is neither a
'dangerous weapon' nor a 'dagger'. 'Deadly and dangerous
weapon' is one designed primarily as a weapon or diverted
from normal use and prepared for combat... Cane,
butterfly, and kitchen knives are not deadly or dangerous
weapons... Sheathed sword cane and wooden knuckles with
shark's teeth were 'deadly or dangerous weapons..."
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Crafty_Dog
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« Reply #56 on: September 02, 2008, 07:33:07 PM »

Note that this is two years old:
==========================


15 States Expand Right to Shoot in Self-Defense
By ADAM LIPTAK
Published: August 7, 2006

In the last year, 15 states have enacted laws that expand the right of
self-defense, allowing crime victims to use deadly force in situations that
might formerly have subjected them to prosecution for murder.

The New York Times

Jason Rosenbloom was shot twice during a dispute over how many garbage bags
Mr. Rosenbloom had put out. The shooter was not arrested.

Multimedia

Graphic: Looser Restrictions on Lethal Force
Related
2006 Florida Statutes: Title XLVI, Chapter 776: Justifiable Use of Force
(leg.state.fl.us)

Pasco Sheriff's Department
Jacqueline Galas, a Florida prostitute, shot and killed a 72-year-old
client. She was not charged.

Supporters call them "stand your ground" laws. Opponents call them "shoot
first" laws.

Thanks to this sort of law, a prostitute in Port Richey, Fla., who killed
her 72-year-old client with his own gun rather than flee was not charged
last month. Similarly, the police in Clearwater, Fla., did not arrest a man
who shot a neighbor in early June after a shouting match over putting out
garbage, though the authorities say they are still reviewing the evidence.

The first of the new laws took effect in Florida in October, and cases under
it are now reaching prosecutors and juries there. The other laws, mostly in
Southern and Midwestern states, were enacted this year, according to the
National Rifle Association, which has enthusiastically promoted them.

Florida does not keep comprehensive records on the impact of its new law,
but prosecutors and defense lawyers there agree that fewer people who claim
self-defense are being charged or convicted.

The Florida law, which served as a model for the others, gives people the
right to use deadly force against intruders entering their homes. They no
longer need to prove that they feared for their safety, only that the person
they killed had intruded unlawfully and forcefully. The law also extends
this principle to vehicles.

In addition, the law does away with an earlier requirement that a person
attacked in a public place must retreat if possible. Now, that same person,
in the law's words, "has no duty to retreat and has the right to stand his
or her ground and meet force with force, including deadly force." The law
also forbids the arrest, detention or prosecution of the people covered by
the law, and it prohibits civil suits against them.

The central innovation in the Florida law, said Anthony J. Sebok, a
professor at Brooklyn Law School, is not its elimination of the duty to
retreat, which has been eroding nationally through judicial decisions, but
in expanding the right to shoot intruders who pose no threat to the occupant's
safety.

"In effect," Professor Sebok said, "the law allows citizens to kill other
citizens in defense of property."

This month, a jury in West Palm Beach, Fla., will hear the retrial of a
murder case that illustrates the dividing line between the old law and the
new one. In November 2004, before the new law was enacted, a cabdriver in
West Palm Beach killed a drunken passenger in an altercation after dropping
him off.

The first jury deadlocked 9-to-3 in favor of convicting the driver, Robert
Lee Smiley Jr., said Henry Munnilal, the jury foreman.

"Mr. Smiley had a lot of chances to retreat and to avoid an escalation,"
said Mr. Munnilal, a 62-year-old accountant. "He could have just gotten in
his cab and left. The thing could have been avoided, and a man's life would
have been saved."

Mr. Smiley tried to invoke the new law, which does away with the duty to
retreat and would almost certainly have meant his acquittal, but an appeals
court refused to apply it retroactively. He has appealed that issue to the
Florida Supreme Court.

Wayne LaPierre, executive vice president of the N.R.A., said the Florida law
had sent a needed message to law-abiding citizens.

"If they make a decision to save their lives in the split second they are
being attacked, the law is on their side," Mr. LaPierre said. "Good people
make good decisions. That's why they're good people. If you're going to
empower someone, empower the crime victim."

The N.R.A. said it would lobby for versions of the law in eight more states
in 2007.

Sarah Brady, chairwoman of the Brady Campaign to Prevent Gun Violence, said
her group would fight those efforts. "In a way," Ms. Brady said of the new
laws, "it's a license to kill."

Many prosecutors oppose the laws, saying they are unnecessary at best and
pernicious at worst. "They're basically giving citizens more rights to use
deadly force than we give police officers, and with less review," said Paul
A. Logli, president of the National District Attorneys Association.

But some legal experts doubt the laws will make a practical difference. "It's
inconceivable to me that one in a hundred Floridians could tell you how the
law has changed," said Gary Kleck, who teaches criminology at Florida State
University.

Even before the new laws, Professor Kleck added, claims of self-defense were
often accepted. "In the South," he said, "they more or less give the benefit
of the doubt to the alleged victim's account."

(Page 2 of 2)



The case involving the Port Richey prostitute, Jacqueline Galas, turned on
the new law, said Michael Halkitis, division director of the state attorney's
office in nearby New Port Richey. Ms. Galas, 23, said that a longtime
client, Frank Labiento, 72, threatened to kill her and then kill himself
last month. A suicide note he had left and other evidence supported her
contention.

Skip to next paragraph

Thomas Cordy/The Palm Beach Post
Robert Smiley, a cabdriver, killed a passenger in an altercation. He was
tried but the jury deadlocked.

Multimedia

Graphic: Looser Restrictions on Lethal Force
Related
2006 Florida Statutes: Title XLVI, Chapter 776: Justifiable Use of Force
(leg.state.fl.us)
The law came into play when Ms. Galas grabbed Mr. Labiento's gun and chose
not to flee but to kill him. "Before that law," Mr. Halkitis said, "before
you could use deadly force, you had to retreat. Under the new law, you don't
have to do that."

The decision not to charge Ms. Galas was straightforward, Mr. Halkitis said.
"It would have been a more difficult situation with the old law," he said,
"much more difficult."

In the case of the West Palm Beach cabdriver, Mr. Smiley, then 56, killed
Jimmie Morningstar, 43. A sports bar had paid Mr. Smiley $10 to drive Mr.
Morningstar home in the early morning of Nov. 6, 2004.

Mr. Morningstar was apparently reluctant to leave the cab once it reached
its destination, and Mr. Smiley used a stun gun to hasten his exit. Once
outside the cab, Mr. Morningstar flashed a knife, Mr. Smiley testified at
his first trial, though one was never found. Mr. Smiley, who had gotten out
of his cab, reacted by shooting at his passenger's feet and then into his
body, killing him.

Cliff Morningstar, the dead man's uncle, said he was baffled by the killing.
"He had a radio," Mr. Morningstar said of Mr. Smiley. "He could have gotten
in his car and left. He could have shot him in his knee."

Carey Haughwout, the public defender who represents Mr. Smiley, conceded
that no knife was found. "However," Ms. Haughwout said, "there is evidence
to support that the victim came at Smiley after Smiley fired two warning
shots, and that he did have something in his hand."

In April, a Florida appeals court indicated that the new law, had it applied
to Mr. Smiley's case, would have affected its outcome.

"Prior to the legislative enactment, a person was required to 'retreat to
the wall' before using his or her right of self-defense by exercising deadly
force," Judge Martha C. Warner wrote. The new law, Judge Warner said,
abolished that duty.

Jason M. Rosenbloom, the man shot by his neighbor in Clearwater, said his
case illustrated the flaws in the Florida law. "Had it been a year and a
half ago, he could have been arrested for attempted murder," Mr. Rosenbloom
said of his neighbor, Kenneth Allen.

"I was in T-shirt and shorts," Mr. Rosenbloom said, recalling the day he
knocked on Mr. Allen's door. Mr. Allen, a retired Virginia police officer,
had lodged a complaint with the local authorities, taking Mr. Rosenbloom to
task for putting out eight bags of garbage, though local ordinances allow
only six.

"I was no threat," Mr. Rosenbloom said. "I had no weapon."

The men exchanged heated words. "He closed the door and then opened the
door," Mr. Rosenbloom said of Mr. Allen. "He had a gun. I turned around to
put my hands up. He didn't even say a word, and he fired once into my
stomach. I bent over, and he shot me in the chest."

Mr. Allen, whose phone number is out of service and who could not be reached
for comment, told The St. Petersburg Times that Mr. Rosenbloom had had his
foot in the door and had tried to rush into the house, an assertion Mr.
Rosenbloom denied.

"I have a right," Mr. Allen said, "to keep my house safe."
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« Reply #57 on: September 28, 2008, 07:47:24 PM »

A rare piece of good news for our British friends:

http://www.pressdisplay.com/pressdis...2-7199e598314b

You have the right to
shoot dead a burglar
Wed, 16 Jul 2008
HOME OWNERS and others acting in self-defence were yesterday given the legal right for the first time to fight back against burglars and muggers free from fear of prosecution.
They will be able to use force against criminals who break into their homes or attack them in the street without worrying that “heat of the moment” misjudgments could land them in court.
Under the new laws, police and prosecutors will have to assess a person’s actions based on their situation “as they saw it at the time” even if in hindsight it might be seen as unreasonable.
For example, home owners would be able to stab or shoot a burglar if confronted or to tackle them and use force to detain them until police arrived. Muggers could be legally punched and beaten in the street or have their own weapons used against them.
However, attacking a fleeing criminal with a weapon is not permitted nor is lying in wait to ambush them.
The law change follows a public campaign for people to be given the right to defend themselves and their homes after a number of high-profile cases.
In 2000, Tony Martin, a Norfolk farmer, was sent to prison for manslaughter after shooting an intruder in his home.
Tony Singh, a shopkeeper, found himself facing a murder charge this year after he defended himself against an armed robber who tried to steal his takings. During the struggle the robber received a single fatal stab wound to the heart with his own knife.
The Crown Prosecution Service (CPS) eventually decided that Mr Singh should not be charged.
Until now people had to prove in court that they acted in self-defence but the changes mean police and the CPS will make a ruling before that stage.
Jack Straw, the Justice Secretary, said that people would be protected legally if they defended themselves “instinctively”; if they feared for their own safety or that of others and the level of force used was not excessive or disproportionate.
He said the changes in the law were designed to ensure the criminal justice system was weighted in favour of the victim.
Mr Straw — and other Labour ministers — had repeatedly blocked attempts by opposition MPs to give greater protection to householders.
In 2004 Tony Blair promised to review legislation after admitting there was “genuine public concern” about the issue.
But his pledge was dropped weeks later after Charles Clarke, the then home secretary, concluded that the existing law was “sound”.
Two private member’s Bills on the issue were tabled by the Tories around the time of the 2005 general election, but both were sunk by the Government.
In 2004, a Tory Bill designed to give the public the right to tackle burglars forcibly was also rejected.
The new self-defence law, which came into force yesterday, is contained in the Criminal Justice and Immigration Act 2008 and was announced by Mr Straw last September.
He is understood to have decided that changes were necessary after he was involved in four “havea go’’ incidents, which included chasing and restraining muggers near his south London home. Opposition leaders said that the changes offered nothing new and were merely the latest policy designed to appeal to core Tory voters.
In practice, householders are seldom prosecuted if they harm or even kill an intruder but the Act will give them greater legal protection.
Nick Herbert, the shadow justice secretary, said: “This is a typical Labour con — it will give no greater protection to householders confronted by burglars because it’s nothing more than a re-statement of the existing case law.”
Mr Straw said: “The justice system must not only work on the side of people who do the right thing as good citizens, but also be seen to work on their side.
“The Government strongly supports the right of law-abiding people to defend themselves, their families and their property with reasonable force.
“This law will help to make sure that that right is upheld and that the criminal justice system is firmly weighted in favour of the victim. Dealing with crime is not just the responsibility of the police, courts and prisons; it’s the responsibility of all of us.
“Communities with the lowest crime and the greatest safety are the ones with the most active citizens with a greater sense of shared values, inspired by a sense of belonging and duty to others, who are empowered by the state and are also supported by it — in other words, making a reality of justice.
“These changes in the law will make clear — victims of crime, and those who intervene to prevent crime, should be treated with respect by the justice system.
“We do not want to encourage vigilantism, but there can be no justice in a system which makes the victim the criminal.”
The announcement came as it emerged in a leaked draft of the Policing Green Paper that home owners may have to wait up to three days after reporting a crime before they see a police officer.
The Home Office would not comment on the plans.
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« Reply #58 on: October 10, 2008, 01:03:41 AM »

Brit Gardener Ordered To Remove Barbed Wire to Protect Thieves

--------------------------------------------------------------------------------

Gardener ordered to take down barbed wire to protect thieves

A gardener who fenced off his allotment patch with a single strand of barbed wire to protect it from thieves has been ordered to take it down in case intruders hurt themselves.

Last Updated: 2:53PM BST 09 Oct 2008

Bill Malcolm, 61, was told to "remove it on health and safety grounds" by the local council, which owns the allotments.

He erected the deterrent after thieves struck three times in four months, stealing more than £300 worth of spades, forks, hoes and wrecking his potato patch in the process.

But officials instructed Mr Malcolm to remove the waist-high wire from his plot at Round Hill Allotments in Marlbrook, Worcs.

He said: "It's an absolutely ridiculous situation, all I wanted was to protect my property but the wire had to go in case a thief scratched himself.

"The council said they were unhappy about the precautions I had made but my response was to tell them that only someone climbing over on to my allotment could possibly hurt themselves.

"They shouldn't be trespassing in the first place but the council apologised and said they didn't want to be sued by a wounded thief.

"I told them to let the thief sue me so at least that way I would know who was breaking into my allotment but everything I said fell on deaf ears.

"It seems as though they are so wrapped up in red tape, they are unable to help me.

"The barbed wire was a single strand and ringing my property only. It was just three foot high and wasn't as though I'd dug a moat filled with piranha and erected six foot iron railings."

A spokesman for Bromsgrove District Council responded: "With regard to the barbed wire, when this is identified on site, we are obliged to request its removal or remove it on health and safety grounds to the general public, as this is a liability issue. This is a requirement enforced by our health and safety department."

She advised allotment tenants with security concerns to contact the local police.

http://www.telegraph.co.uk/news/news...t-thieves.html

=============
Judge orders court to apologise to gardener prosecuted for having a scythe

By LUKE SALKELD
Last updated at 6:18 PM on 09th October 2008

As a professional gardener, they are the essential tools of Peter Drew's trade.

But in the eyes of the police, the scythe, axes and knives found inside the back of his van were something far more sinister.

And despite Mr Drew's desperate attempts to explain that he needed them for horticultural reasons, he was arrested - and charged with carrying an offensive weapon.

Mr Drew, 49, then endured eight months of court appearances and the threat of a trial hanging over his head.

But last week the judge threw the case out of court moments before a trial was due to begin and demanded a public apology to Mr Drew from the prosecution.

He blasted the Crown Prosecution Service for wasting jurors' time and for putting Mr Drew through the 'trauma' of a doomed prosecution.

After Mr Drew produced references from customers - including several solicitors - Judge Paul Darlow ordered prosecution barrister, Philip Lee, to issue a public apology to Mr Drew at Truro Crown Court in Cornwall and asked the CPS to do the same.

Speaking at the hearing, Judge Darlow said: 'I want to find out why we've got to the start of the trial and the CPS are suddenly saying 'Oops'.

'I don't think the CPS can escape criticism or blame if they leave it to the last minute to make up their minds.

'We despair of trying to run these courts in any sort of efficient way.

'Try telling this to jurors who come from their jobs and their homes, quite apart from any trial and trauma that Mr Drew has been through, by knowing that in October he would be in front of a jury.'

The judge went on: 'I think some sort of public apology to Mr Drew from the court would not go amiss.'

Phillip Lee, prosecuting, responded: 'On behalf of the CPS I apologise that it has taken this long.

'Some decisions are very obvious and some less so. I wouldn't say this was an obvious decision.'

After the brief hearing Mr Drew, of Heamoor near Penzance, Cornwall, described his ordeal as a 'nightmare'.

He said: 'The whole thing knocked me for six - I've lived in Heamoor all my life and when the case was reported in the papers, people were asking me what it was all about and I didn't want to say anything because the case was still going on.

'I'm disgusted, really. Now I just want to clear my name so everyone knows I haven't been carrying knives illegally.'

A spokesman for Devon and Cornwall Police said Peter Drew was found with a bread knife and a machete behind the sun visor of his van.

Officers also discovered two axes in driver's door pocket and a scythe in the passenger footwell.

He said: 'Officers searched Mr Drew's van and found various bladed items, including an axe and a bread knife.

'The items were in the side pockets, the footwell and behind the sun visor.

'An officer might assume a professional gardener would keep his tools in a bag in the back of the van.

'He explained that the knives were for business purposes but the officers felt this was for the courts to decide.

'Mr Drew was summonsed to magistrates court and offered no plea and the matter was referred to crown court.

'He produced evidence that the knives were used for pruning and the CPS accepted his explanation before proceedings began.'

http://www.dailymail.co.uk/news/arti...g-scythe.html#
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« Reply #59 on: December 01, 2008, 10:37:51 AM »

http://www.commercialappeal.com/news/2008/dec/01/standing-their-ground/

Standing their ground: More citizens enforcing the law themselves
By Marc Perrusquia (Contact), Memphis Commercial Appeal
Monday, December 1, 2008

The gun's muzzle pushed hard into the back of his neck.  Desperate, Mitch Morelli's mind raced.  My wife. My son. My family. 
Still, the voice grew louder.

"Give me all your money!''

The stocky teenager pressed the pistol in harder, taking Morelli's wallet.

 "I'm killing you right now! You shouldn't have looked at me, man! Go ahead. Say goodbye. Say goodbye. I'm blowing you away right here.''

But when the teen suddenly fled, Morelli's fear morphed to rage. Pursuing his attacker and dodging bullets in a high-speed car chase -- the action caught on a 911 tape -- Morelli was able to jot down a tag number that helped police track down the assailant.

"It was straight out of Clint Eastwood-type stuff,'' Morelli said later. "But I knew if I did nothing, nothing would happen.''

It turned out to be quite a coup for public safety: The youth, police allege, had terrorized city schools in a series of handgun incidents and had robbed another family in a home invasion.  At the same time, Morelli's actions pose troubling questions about just how far citizens should go in protecting themselves from crime.

Like Bernard Goetz, the "Subway Vigilante'' who shot four would-be robbers on a New York City train in 1984, a new generation of citizens who are retaliating against thugs and attackers are finding acceptance, even celebrity, among a public frustrated with crime. 
Just this fall, a Tipton County homeowner made news when he exchanged gunfire on the street with fleeing burglars. A Rosemark man gained wide attention, too when he held two intruders at gunpoint.

"I've always felt if you're in fear of your life you can use your gun,'' said Steve Rutter, who pulled a 9mm handgun on intruders who'd tried to drive off with his 16-foot flatbed trailer. Rutter's action led police to bust up a large theft ring.

Yet along with the glow of these crime victims' stories comes a share of tragedy. Memphian Jacob Evans shot and killed an assailant who, after robbing him once, had returned to rob again. It was even worse for grocery manager John Russell, who was fatally shot when he tried to defend his store against a pair of robbers.

Critics fear some citizens have become too bold amid law changes that have greatly broadened the right of self-defense. Nationally, a spate of "Stand Your Ground'' laws, including one passed in Tennessee last year, are eliminating old standards requiring that a crime victim retreat first before using deadly force.

Longstanding Tennessee laws already had armed citizens with great power to defend themselves, including the right to make a citizen arrest or to pursue a criminal as Morelli did, said Shelby County Asst. Dist. Atty. Gen. Tom Henderson.

Danger, including potential injury and death, as well as the potential for criminal and civil litigation when a citizen steps over the line, should deter most people from engaging in gun battles or chasing down a suspect, he said.

"It's certainly not anything we want to see catch on,'' Henderson said.

Mitch Morelli had completed his morning rounds selling construction equipment at home-building sites April 9 when he pulled his Toyota pickup into a shaded spot near Audubon Park's golf clubhouse.

He was most of the way through a three-piece box of Jack Pirtle's chicken when a small silver car pulled into the spot immediately to his left.

Of all the abuse he suffered during the five- to 10-minute robbery -- the gun held to his neck, the barrel alternately in his face, the death threats -- Morelli said he was set off by a threat against his young son. Morelli had pleaded with the robber, telling him he had a toddler at home. Morelli recalled a cold response: The teen vowed to come to Morelli's house and shoot his son, too.

"That's when the fear turned to rage,'' he said.

Morelli didn't have a gun -- but he did have his wits.

As the teen and a female accomplice drove off, Morelli gave chase.

And so it happened that Mitchell Lee Morelli, a 46-year-old equipment salesman, became a symbol of a frustrated public fed up with crime. Morelli chased the teen for miles through East Memphis and into Orange Mound.

Like a scene out of a Hollywood thriller, tires screeched and bullets flew -- the drama caught on a 911 tape.

"He just shot at me!'' Morelli tells a police supervisor on the tape of the 911 call he made from his cell phone during the chase.

"Sir,'' the police supervisor responds, "if you catch up with him and he shoots you, we can't be responsible.''

Police tried everything -- reasoning, orders, threats -- to get Morelli to stop.

Yet Morelli was determined to get close enough to jot down the fleeing car's tag number.

"I'm going to go down swinging,'' he said later, describing his mindset that day last spring. "I wanted to have the last say so.''

Technically, police can't complain about Morelli's actions: Running the tag he supplied, they arrested Marquetta Hawk, 22, charged as an accessory after the fact, and gang member Devyn Knowles, now 20, who is charged with aggravated robbery and assault and is being held in the Shelby County Jail on a $200,000 bond.

Prosecutor Henderson said Morelli likely was within his rights to pursue his robbers. For starters, an old Tennessee law gives citizens power to make citizen arrests. "You're entitled to arrest that person if you can catch up with him,'' Henderson said.

But some feel some citizens are going too far.

"The real question is do we respect the criminal justice system or do we go back to a vigilante, every-man-for- himself situation?'' asked Paul Helmke, president of the Brady Campaign to Prevent Gun Violence.

Helmke is critical of the proliferation of "Stand Your Ground'' laws that typically eliminate requirements that crime victims retreat before using deadly force to protect a car, home or business.

According to the National Rifle Association, 22 states have Stand Your Ground laws, including Tennessee, where last year lawmakers extended the use of deadly force to citizens who are attacked in their cars.

Critics assail the laws, pointing to reckless shootings such as one in Florida in 2006 in which a man who shot a neighbor during an argument over garbage avoided prosecution by asserting Stand Your Ground protections.

"All you have to do is tell the cop, 'I felt threatened,' and they can't even bring a charge against you,'' Helmke said.

In Tennessee, a citizen can't use deadly force simply to protect property but only when "you are in reasonable fear of your life,'' Henderson said.

And while citizen pursuit of a suspect may be legal, Memphis Police Director Larry Godwin said it's a dicey and inadvisable venture.

Morelli couldn't say what would have happened had he had a gun that day, yet he dismissed criticism of his action.

"They don't know what the taste of metal in your mouth is,'' he said.
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« Reply #60 on: December 05, 2008, 12:15:42 PM »

I strongly support self-defense laws and this article does not.  I post it because it reports on an important subject.
========
--------------------------------------------------------------------------------

AP Enterprise: Deaths loom over self-defense laws

Friday, December 05, 2008
By SHELIA BYRD, Associated Press Writer

JACKSON, Miss. —
A convenience store clerk chased down a man and shot him dead over a case of beer this summer and was charged with murder. A week later, a clerk at another Jackson convenience store followed and fatally shot a man he said tried to rob him, and authorities let him go without charges.

Police say the robber in the second case was armed, while the man accused of stealing beer was not.

Just the same, the legal plights of the two clerks highlight the uncertain impact of National Rifle Association-backed laws sweeping the nation that make it easier to justify shooting in self-defense.

In 2006, Mississippi adopted its version of the so-called castle doctrine, which lifts requirements that individuals first try to flee before using deadly force to counter a threat in their homes, vehicles or, in Mississippi's case, at work.

Gun rights advocates who have helped pass the law in 23 states since 2003 say it removes an unfair legal penalty for people exercising a constitutional right in a life-or-death emergency, though some police and prosecutors are skeptical of self-defense claims under the law.
An Associated Press review found a growing number of cases but no clear trend yet in how the law is applied or how cases will be resolved in court.
All a defendant has to do is establish a threat, and usually the other witness is dead. That shifts the burden to prosecutors and police investigators, who have to gather evidence to show beyond a reasonable doubt that deadly force wasn't justified, according to a report released this summer by the National District Attorneys Association.

"It's very difficult to prove a negative," said Steven Jansen, president of the NDAA. "It might be a little too early to get the overall effect through the court process because we're just seeing the cases enter the court and finding out how the judges are going to rule."

Sarbrinder Pannu, the first clerk, alleged that James Hawthorne grabbed beer from a cooler and left without paying for it. Police Lt. Jeffery Scott said Pannu followed Hawthorne outside the store and shot him twice.
Surinder Singh, president of the Jackson Indian Storeowners Association and a spokesman for Pannu, said Mississippi's law gives you the right to protect your property.

"For them, it's a case of beer. For us, it's our property," Singh said. "That person didn't have respect for his life. He put his life against one case of beer."

Police and prosecutors disagreed and charged Pannu with murder and shooting into an occupied vehicle. Pannu has not entered a plea and has declined to be interviewed.

About a week after Hawthorne was killed, a clerk at another Jackson convenience store chased and fatally shot a clown mask-wearing robber outside the store after he stole cash from the register. The clerk wasn't charged.

Police didn't release the clerk's name because he wasn't charged. As with Hawthorne's shooting, the case will be presented to a grand jury, though police said the second clerk was justified because he felt a clear and present danger.

"The first thing about it is that you want to fairly apply the law," said Scott, who helped investigate both shootings and pointed out that the second robber was armed. "The problem is that there's an exception to every rule."

Castle doctrine laws drew national attention when Joe Horn of Pasadena, Texas, shot and killed two men in November 2007 after he saw them crawling out of the windows of a neighbor's house, carrying bags of the neighbor's possessions. Horn claimed the shooting was justified by Texas' law, and a grand jury declined to indict him.

Cases this year have included a man in San Antonio who shot and killed an intruder who climbed through his bedroom window and a Lexington, Ky., man who shot through his house's front door, killing a man who had been beating on it. No charges were filed in either case.

A woman in Missouri, which enacted its castle doctrine last year, could still face charges for shooting her former boyfriend after he came through the window of her home. A coroner's jury in Adair County ruled that Jackie Gleason committed a felony when she killed Rogelio Johnson in May.

Prosecutors said the jury might not have understood the law and have asked the state attorney general to review whether to file formal charges.
The law's rapid rollout across nearly half the nation is largely the result of lobbying by the NRA. Most of the state laws, including Mississippi's, are patterned after Florida's.

Michael Edmondson, who works in the state attorney's office in Palm Beach County, said castle-doctrine claims have increased since the law took effect three years ago.

"You would rarely see a case prior to the change of the statute here in Florida," Edmondson said. "I can recollect a half dozen cases in the last year or so. Some successful. Some not."

Andrew Arulanandam, director of public affairs for the NRA, dismissed concerns about the law being misused or misinterpreted, saying all cases are reviewed by law enforcement authorities.

The laws have become popular in a country that's grown increasingly anxious, said Mat Heck, prosecuting attorney for Montgomery County in Ohio, where a castle doctrine law went into effect in September.
"There really is a change in perception of public safety after 9/11," Heck said. "Citizens are just anxious. They fear attacks, not only from the terrorists abroad, but from residents here in our own country."
A lack of confidence in the justice system and the perception that defendants' rights overshadow victims' are other reasons cited in the NDAA report.

Heck said his state's law pertains to a person's home and car, and is only applied when someone has unlawfully entered.
"We tried to make it somewhat restrictive so it wasn't like the old wild, wild West," Heck said.

Pannu is free on $50,000 bond and has returned to work at the store, where jugs of candy clutter the cashier's counter and pictures of Pannu standing with $1,000 winners of scratch-off games are posted on the bulletproof barrier that separated him from Hawthorne on Aug. 17.
"The real debate is 'Can you kill a man for shoplifting?'" said Dennis Sweet, a Jackson attorney representing Hawthorne's family in a lawsuit against Pannu and A&H Food Mart.

"The guy was in his truck leaving," Sweet said. "He posed no danger."
Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
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« Reply #61 on: December 07, 2008, 03:54:20 AM »

Good article,

      I have had many people ask, me the question,  PK why don't you open a dojo or when I offer to train some of our less gifted officers they seem to hold on to the belief that one needs a belt to be a warrior. As a Detention Deputy or Correction's  Officer you get into more Use Of force with your hands then any other type of Job. SO there's always that one thug wanna be who after you use your skills and defeat his attempts at controll, will call his lawyer take you to court. Not fun.  So keep your knife Sharp and your powder dry.    " Project weakness when you are strong"
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« Reply #62 on: December 07, 2008, 09:04:28 PM »

http://www.timesonline.co.uk/tol/comment/article5299010.ece

From The Sunday Times

December 7, 2008


Think tank: If each of us carried a gun . . .

. . . we could help to combat terrorism

Richard Munday


div#related-article-links p a, div#related-article-links p a:visited {color:#06c;}The firearms massacres that have periodically caused shock and horror around the world have been dwarfed by the Mumbai shootings, in which a handful of gunmen left some 500 people killed or wounded.
For anybody who still believed in it, the Mumbai shootings exposed the myth of “gun control”. India had some of the strictest firearms laws in the world, going back to the Indian Arms Act of 1878, by which Britain had sought to prevent a recurrence of the Indian Mutiny.
The guns used in last week’s Bombay massacre were all “prohibited weapons” under Indian law, just as they are in Britain. In this country we have seen the irrelevance of such bans (handgun crime, for instance, doubled here within five years of the prohibition of legal pistol ownership), but the largely drug-related nature of most extreme violence here has left most of us with a sheltered awareness of the threat. We have not yet faced a determined and broad-based attack.
The Mumbai massacre also exposed the myth that arming the police force guarantees security. Sebastian D’Souza, a picture editor on the Mumbai Mirror who took some of the dramatic pictures of the assault on the Chhatrapati Shivaji railway station, was angered to find India’s armed police taking cover and apparently failing to engage the gunmen.
In Britain we might recall the prolonged failure of armed police to contain the Hungerford killer, whose rampage lasted more than four hours, and who in the end shot himself. In Dunblane, too, it was the killer who ended his own life: even at best, police response is almost always belated when gunmen are on the loose. One might think, too, of the McDonald’s massacre in San Ysidro, California, in 1984, where the Swat team waited for their leader (who was held up in a traffic jam) while 21 unarmed diners were murdered.



Rhetoric about standing firm against terrorists aside, in Britain we have no more legal deterrent to prevent an armed assault than did the people of Mumbai, and individually we would be just as helpless as victims. The Mumbai massacre could happen in London tomorrow; but probably it could not have happened to Londoners 100 years ago.
In January 1909 two such anarchists, lately come from an attempt to blow up the president of France, tried to commit a robbery in north London, armed with automatic pistols. Edwardian Londoners, however, shot back – and the anarchists were pursued through the streets by a spontaneous hue-and-cry. The police, who could not find the key to their own gun cupboard, borrowed at least four pistols from passers-by, while other citizens armed with revolvers and shotguns preferred to use their weapons themselves to bring the assailants down.
Today we are probably more shocked at the idea of so many ordinary Londoners carrying guns in the street than we are at the idea of an armed robbery. But the world of Conan Doyle’s Dr Watson, pocketing his revolver before he walked the London streets, was real. The arming of the populace guaranteed rather than disturbed the peace.
That armed England existed within living memory; but it is now so alien to our expectations that it has become a foreign country. Our image of an armed society is conditioned instead by America: or by what we imagine we know about America. It is a skewed image, because (despite the Second Amendment) until recently in much of the US it has been illegal to bear arms outside the home or workplace; and therefore only people willing to defy the law have carried weapons.
In the past two decades the enactment of “right to carry” legislation in the majority of states, and the issue of permits for the carrying of concealed firearms to citizens of good repute, has brought a radical change. Opponents of the right to bear arms predicted that right to carry would cause blood to flow in the streets, but the reverse has been true: violent crime in America has plummeted.
There are exceptions: Virginia Tech, the site of the 2007 massacre of 32 people, was one local “gun-free zone” that forbade the bearing of arms even to those with a licence to carry.
In Britain we are not yet ready to recall the final liberty of the subject listed by William Blackstone in his Commentaries on the Laws of England as underpinning all others: “The right of having and using arms for self-preservation and defence.” We would still not be ready to do so were the Mumbai massacre to happen in London tomorrow.
“Among the many misdeeds of British rule in India,” Mahatma Gandhi said, “history will look upon the act depriving a whole nation of arms as the blackest.” The Mumbai massacre is a bitter postscript to Gandhi’s comment. D’Souza now laments his own helplessness in the face of the killers: “I only wish I had had a gun rather than a camera.”
Richard Munday is the co-author and editor of Guns & Violence: The Debate Before Lord Cullen
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« Reply #63 on: June 11, 2009, 07:59:14 AM »



"Initial aggressor” means the person who first attacks or threatens to attack; that is, the first person who uses or threatens the imminent use of offensive physical force. The actual striking of the first blow or inflicting of the first wound, however, does not necessarily determine who was the initial aggressor.

A person who reasonably believes that another is about to use physical force upon him/her need not wait until he/she is struck or wounded. He/she may, in such circumstances, be the first to use physical force, so long as he/she reasonably believed it was about to be used against him/her or someone else.



(Quote from:
http://www.nycourts.gov/cji/1-...n.Physical_Force.pdf
JUSTIFICATION: USE OF PHYSICAL FORCE IN DEFENSE OF A PERSON
PENAL LAW 35.15 (Effective Sept. 1, 1980) )
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« Reply #64 on: July 01, 2009, 08:20:11 AM »

Rather long, but a good read.  This case presents many issues in self-defense.

http://www.cofad1.state.az.us/opinionfiles/CR/CR060675OP.pdf
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« Reply #65 on: August 05, 2009, 03:21:00 PM »

http://www.nacdl.org/public.nsf/698c98dd101a846085256eb400500c01/f587d7d10c34fff2852572b90069bc3c?OpenDocument
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« Reply #66 on: August 06, 2009, 11:25:35 AM »

Excellent article!  I remember my uncle as District Attorney had to prosecute a homeowner who shot and killed an intruder in his home in a heavily publicized local case.  The facts just did not match the requirements of self defense.  The homeowner had previously flaunted the fact that he would shoot any intruder, he made no claim of thinking he saw a weapon much less aimed at him or other life threatening danger, so the result was that the otherwise law abiding citizen defending his home was convicted of murder.

Advice to anyone ever found in that situation: call 911, hand the police your weapon and surrender yourself in silence.  Say absolutely nothing to anyone for a very, very long time until you have the very best legal defense fully set on a very comprehensive legal strategy.  As the article says, self defense is an all or none defense that involves admitting an intentional act and eliminates all other excuses and defenses.
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Body-by-Guinness
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« Reply #67 on: August 08, 2009, 01:01:55 PM »

I have to assume this has been posted here before, but I didn't find it with a quick search. It speaks to the points Doug and others have made:





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G M
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« Reply #68 on: August 08, 2009, 01:46:40 PM »

The above is bad advice, unless you have committed a crime. If you lawfully used force to defend youself/another, a brief statement needs to be given.
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G M
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« Reply #69 on: August 08, 2009, 01:53:25 PM »

http://dogbrothers.com/phpBB2/index.php?topic=864.100
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DougMacG
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« Reply #70 on: August 08, 2009, 07:44:35 PM »

"The above is bad advice, unless you have committed a crime. If you lawfully used force to defend yourself/another, a brief statement needs to be given."

Fair enough.  I back off my over-generalized, amateur advice.  In my example the fellow was guilty (of shooting the intruder without all the elements of self defense) and his statement made the case against him.

Thinking of a different legal situation, some years ago I owned an apartment building that was firebombed by teenage gangmembers.  The Mpls arson chief investigator asked me to meet him at the bldg and we set up an appointment.  As I was leaving my office someone else told me to keep in mind that I am a suspect.  I laughed thinking that was ridiculous. I was in Montana skiing and not even reachable when it happened. I have receipts to prove it. Then I freaked, realizing that was exactly what a guilty party would arrange.  On the way over, my mind raced to recall everything I knew about everyone in the building.  Instead of my usual smug and flippant self, I was extremely helpful and forthcoming on everything he asked.  He told me he wasn't able to get into the burned unit and I told him I would get him in.  I used landlord persuasion to get them to the door and introduced him to the tenants after we were in.   When I saw the smoke detector disabled I laid into them about how that could have killed people in the other units and besides I had just warned them about doing that some specific time previous.  (Like OJ Simpson, my best bet seemed to be for them to find the real perps and the real motive very quickly.) Everything worked out fine for me but I no longer carry insurance on any of my properties.  I would rather fix the property out of pocket than fight insurance companies and carry a motive.

What I take from the defense video is that their advice (don't talk to police) applies best in the situation where they are about to arrest you anyway.  You will have opportunity to respond to the charges.

Back to Crafty's piece, the people here seem acutely aware of the requirements of self defense.  I think that is far less true for the general public.
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Crafty_Dog
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« Reply #71 on: October 12, 2009, 09:14:35 AM »

NYT
NEWARK, Del. — Finding character witnesses when you are 6 years old is not easy. But there was Zachary Christie last week at a school disciplinary committee hearing with his karate instructor and his mother’s fiancé by his side to vouch for him.


Zachary’s offense? Taking a camping utensil that can serve as a knife, fork and spoon to school. He was so excited about recently joining the Cub Scouts that he wanted to use it at lunch. School officials concluded that he had violated their zero-tolerance policy on weapons, and Zachary now faces 45 days in the district’s reform school.

“It just seems unfair,” Zachary said, pausing as he practiced writing lower-case letters with his mother, who is home-schooling him while the family tries to overturn his punishment.

Spurred in part by the Columbine and Virginia Tech shootings, many school districts around the country adopted zero-tolerance policies on the possession of weapons on school grounds. More recently, there has been growing debate over whether the policies have gone too far.

But, based on the code of conduct for the Christina School District, where Zachary is a first grader, school officials had no choice. They had to suspend him because, “regardless of possessor’s intent,” knives are banned.

But the question on the minds of residents here is: Why do school officials not have more discretion in such cases?

“Zachary wears a suit and tie some days to school by his own choice because he takes school so seriously,” said Debbie Christie, Zachary’s mother, who started a Web site, helpzachary.com, in hopes of recruiting supporters to pressure the local school board at its next open meeting on Tuesday. “He is not some sort of threat to his classmates.”

Still, some school administrators argue that it is difficult to distinguish innocent pranks and mistakes from more serious threats, and that the policies must be strict to protect students.

“There is no parent who wants to get a phone call where they hear that their child no longer has two good seeing eyes because there was a scuffle and someone pulled out a knife,” said George Evans, the president of the Christina district’s school board. He defended the decision, but added that the board might adjust the rules when it comes to younger children like Zachary.

Critics contend that zero-tolerance policies like those in the Christina district have led to sharp increases in suspensions and expulsions, often putting children on the streets or in other places where their behavior only worsens, and that the policies undermine the ability of school officials to use common sense in handling minor infractions.

For Delaware, Zachary’s case is especially frustrating because last year state lawmakers tried to make disciplinary rules more flexible by giving local boards authority to, “on a case-by-case basis, modify the terms of the expulsion.”

The law was introduced after a third-grade girl was expelled for a year because her grandmother had sent a birthday cake to school, along with a knife to cut it. The teacher called the principal — but not before using the knife to cut and serve the cake.

In Zachary’s case, the state’s new law did not help because it mentions only expulsion and does not explicitly address suspensions. A revised law is being drafted to include suspensions.

“We didn’t want our son becoming the poster child for this,” Ms. Christie said, “but this is out of control.”

In a letter to the district’s disciplinary committee, State Representative Teresa L. Schooley, Democrat of Newark, wrote, “I am asking each of you to consider the situation, get all the facts, find out about Zach and his family and then act with common sense for the well-being of this child.”

Education experts say that zero-tolerance policies initially allowed authorities more leeway in punishing students, but were applied in a discriminatory fashion. Many studies indicate that African-Americans were several times more likely to be suspended or expelled than other students for the same offenses.

“The result of those studies is that more school districts have removed discretion in applying the disciplinary policies to avoid criticism of being biased,” said Ronnie Casella, an associate professor of education at Central Connecticut State University who has written about school violence. He added that there is no evidence that zero-tolerance policies make schools safer.

Other school districts are also trying to address problems they say have stemmed in part from overly strict zero-tolerance policies.

In Baltimore, around 10,000 students, about 12 percent of the city’s enrollment, were suspended during the 2006-7 school year, mostly for disruption and insubordination, according to a report by the Open Society Institute-Baltimore. School officials there are rewriting the disciplinary code, to route students to counseling rather than suspension.

In Milwaukee, where school officials reported that 40 percent of ninth graders had been suspended at least once in the 2006-7 school year, the superintendent has encouraged teachers not to overreact to student misconduct.

“Something has to change,” said Dodi Herbert, whose 13-year old son, Kyle, was suspended in May and ordered to attend the Christina district’s reform school for 45 days after another student dropped a pocket knife in his lap. School officials declined to comment on the case for reasons of privacy.

Ms. Herbert, who said her son was a straight-A student, has since been home-schooling him instead of sending him to the reform school.

The Christina school district attracted similar controversy in 2007 when it expelled a seventh-grade girl who had used a utility knife to cut windows out of a paper house for a class project.

Charles P. Ewing, a professor of law and psychology at the University at Buffalo Law School who has written about school safety issues, said he favored a strict zero-tolerance approach.

“There are still serious threats every day in schools,” Dr. Ewing said, adding that giving school officials discretion holds the potential for discrimination and requires the kind of threat assessments that only law enforcement is equipped to make.

In the 2005-6 school year, 86 percent of public schools reported at least one violent crime, theft or other crime, according to the most recent federal survey.

And yet, federal studies by the Centers for Disease Control and Prevention and another by the Department of Justice show that the rate of school-related homicides and nonfatal violence has fallen over most of the past decade.

Educational experts say the decline is less a result of zero-tolerance policies than of other programs like peer mediation, student support groups and adult mentorships, as well as an overall decrease in all forms of crime.

For Zachary, it is not school violence that has left him reluctant to return to classes.

“I just think the other kids may tease me for being in trouble,” he said, pausing before adding, “but I think the rules are what is wrong, not me.”
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G M
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« Reply #72 on: November 10, 2009, 10:49:12 PM »

http://www.shouselaw.com/self-defense.html

Forcible and atrocious crimes



If you argue that you acted in self-defense because you believed you were about to be killed, maimed, raped, robbed, or the victim of another California violent crime, the judge will instruct the jury that they may presume you had a reasonable belief that you were about to suffer imminent harm.16

If you acted in response to one of these "forcible and atrocious crimes", the jury will only need to consider whether you responded reasonably.

**It appears so. I am not an expert in California law. Please consult with an attorney/qualified expert just to be sure.**
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David III
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« Reply #73 on: November 16, 2009, 11:14:05 AM »

It has always seemed strange to me that it seems to come down to where you happen to be standing as to what actions you can (legally) do to defend yourself. If I'm in Pennsylvania, by the time I worked out whether or not I was actually being threatened and to what degree, I'd be dead - at least I think I would, since I'm not an attorney and can't really interpret the law well enough where I would be sure that my opinion would hold up in court.

Home in Missouri, though, I have the state's castle doctrine and -- I believe much more important, I know most of the people at the Sheriff's department -- so when a couple patrol cars show up, they're going to have at least a preliminary idea that me, the old guy with the gun, is probably the good guy.

Another question in an earlier post, what's a threat? Somebody in my home is a threat and I'm not talking to them. My home, so I'm just attacking whatever my German Shepherd is biting. But, and this did happen, some clown showed up late one night and tried to kick in the front door. Threat? Not at all. I got a shotgun and the big dog and my wife called 911. Fifteen minutes later, two cars showed up from one direction and then another car from the other way (our neighbor, also a deputy, decided to get up and see what was going on). The guy who had attempted to break the door down didn't realize the door is steel with reinforced everything and I guess he broke his knee or something, the deputies found him outside in the yard. Oops. No threat. Had he made it through the door, which I thought was extremely unlikely, I'd have taken some action, but again, didn't think that was possible unless he had some kind of breaching tools.

I think that had I shot through the door, that would have been excessive and unwarranted. Perhaps that isn't the way to look at the situation, but as long as I consider myself "safe," then I don't see any reason to attack. I'm sure various laws will castigate me both ways..........
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G M
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« Reply #74 on: November 16, 2009, 11:27:56 AM »

It has always seemed strange to me that it seems to come down to where you happen to be standing as to what actions you can (legally) do to defend yourself. If I'm in Pennsylvania, by the time I worked out whether or not I was actually being threatened and to what degree, I'd be dead - at least I think I would, since I'm not an attorney and can't really interpret the law well enough where I would be sure that my opinion would hold up in court.

Home in Missouri, though, I have the state's castle doctrine and -- I believe much more important, I know most of the people at the Sheriff's department -- so when a couple patrol cars show up, they're going to have at least a preliminary idea that me, the old guy with the gun, is probably the good guy.

Another question in an earlier post, what's a threat? Somebody in my home is a threat and I'm not talking to them. My home, so I'm just attacking whatever my German Shepherd is biting. But, and this did happen, some clown showed up late one night and tried to kick in the front door. Threat? Not at all. I got a shotgun and the big dog and my wife called 911. Fifteen minutes later, two cars showed up from one direction and then another car from the other way (our neighbor, also a deputy, decided to get up and see what was going on). The guy who had attempted to break the door down didn't realize the door is steel with reinforced everything and I guess he broke his knee or something, the deputies found him outside in the yard. Oops. No threat. Had he made it through the door, which I thought was extremely unlikely, I'd have taken some action, but again, didn't think that was possible unless he had some kind of breaching tools.

I think that had I shot through the door, that would have been excessive and unwarranted. Perhaps that isn't the way to look at the situation, but as long as I consider myself "safe," then I don't see any reason to attack. I'm sure various laws will castigate me both ways..........

It's all about ABILITY, OPPORTUNITY and JEOPARDY.

Did the bad guy act in a manner where a reasonable person would fear for their life?
« Last Edit: November 16, 2009, 11:30:58 AM by G M » Logged
David III
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« Reply #75 on: November 16, 2009, 01:20:46 PM »

GM, that's the cleanest I have ever seen it explained.

thank you!

David --
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Crafty_Dog
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« Reply #76 on: November 27, 2009, 08:35:07 AM »

It Doesn't Have to Make Sense: It's Just the Law - Statements
"...Written statement: a VERY BAD idea! ...."
by K.L. Jamison
In 1996, an unhappy consumer attacked the City Marshal of Lancaster, Missouri with a hammer.(1) The Marshal defended himself and later vented his adrenaline to the responding Sheriff stating, "I hope the son-of-a-bitch is dead." This led to the Marshal's conviction for involuntary manslaughter and a sentence of seven years in prison.(2) The story had a happy ending, but a story four years and tens of thousands of dollars in the making, and not a story the Marshal enjoyed very much. The Marshal might have avoided the worst part of the story had he not confused his right to remain silent with the right of free speech.

In the movie, Under Pressure, a woman tried to explain the stalking and implied threats of a neighbor. After a disorganized and unconvincing recitation of ambiguous events she lamely concludes, "I'm not a very good story teller." Most people tell stories badly. In the aftermath of self-defense there can be a giddy stream of consciousness statement which has more to do with the effects of adrenaline than reality. The basic legal advice is "DON'T."

The first question is, "What is a statement?" In a nation which counts exotic dancing as freedom of speech, a statement is also broadly construed. In 1996, the Missouri Supreme Court ruled that a suspect's refusal to uncross his legs during questioning could be taken as a statement when later charged with murder.(3) In a separate death penalty case, the court found that the defendant had purchased a used car which sported the bumper sticker, "I'm the person your mother warned you about." At trial the prosecution argued that the fact he did not remove this bumper sticker revealed something about his character. The Missouri Supreme Court ruled that it was perfectly acceptable for the state to kill this man, in part, because of his failure to remove the bumpersticker.(4) One can imagine the effect of bumper stickers bought in jest such as, "Keep Honking, I'm Reloading." If this case does not also inspire a re-evaluation of one's T-shirt collection, nothing will.

There is also the problem of nicknames. As of this writing, a rapper who rejoices in the stage name "C-Murder" is on trial for murder. If I were asked to defend a man named "Murder" or any variation thereof, I would charge more. Massad Ayoob testified in favor of a police officer who had killed a felon nicknamed "Snake." Captain Ayoob slipped the nickname into his testimony which seems to have had an effect on the jury.



Written statement, a VERY BAD idea!


There is a cynical defense attorney saying: "Anything you say will be misquoted and used against you." In the movie, My Cousin Vinnie, two, unfortunate Yankees are suspected of murder and during questioning are accused of shooting a clerk. One incredulously asked, "I shot the clerk?" This is taken down and read in court as a confession. Theater audiences laughed, defense attorneys smiled and nodded. There have even been cases where comments by other persons have been attributed to the defendant, and used against him; complete silence is the only bulwark against these mistakes.

The first statement is the 911 call. These calls are recorded and if the call sounds bad for the defendant, it will be played over and over again at trial. In one case, a man cocked his double-action revolver and went after a person who was shooting out windows. When he caught up with the threat he extended his revolver and in the process tripped the light single action trigger pull; arguably an accidental discharge. His 911 call records him saying that he thought he had just shot someone. The 911 operator, trained to keep him on the line and keep him talking, asked why he thought he had shot someone. The man replied, "Lady, I think I'm a pretty good shot." This callous-sounding statement took accident off the table and the man had to live or die with a self-defense case. This all important introduction to law enforcement must be planned in advance.

The first words out of the caller's mouth should be the location of the incident. If the battery then dies, or the minutes run out, or some other technological catastrophe occurs the authorities will know that something of interest is at that location, and the caller's cell phone records can prove that he or she made the call. The next statement is the caller's name. The core of the 911 call consists of three sentences:

"He tried to kill me."
"I was never so scared in my life."
"Send an ambulance."(5)

The first sentence serves to introduce the roles of the parties, the caller is the victim, the other person the attacker. Being in reasonable fear of life or limb is a prerequisite to acting in self-defense. The phrase "I was never so scared..." is to preclude the prosecutor from claiming that the citizen never said he was scared "until he talked to a lawyer."(6) The phrase "Send an ambulance" says that the caller does not want anyone to die.

When the police arrive, they will want a more elaborate statement; this should consist only of:

1. He attacked me.
2. I will sign a complaint.
3. There is the evidence.
4. I WANT A LAWYER.


Good Advice.


This restates part of the 911 call and points out critical evidence. One cannot expect the "CSI" team to be called out to pick up every fiber and hair. If a real forensic team routinely conducted the investigations shown on television, its budget would last about a week.

The demand for a lawyer is both the best thing one can do, and a damaging statement. Anyone who is questioned by police has the right to a lawyer; this includes victims. The problem is that the police, and potential jurors, take a demand for a lawyer as evidence of something to hide. To compound the problem, the victim's decision to remain silent and demand for a lawyer can be used again him or her in court. In the criminal system, one does not have rights, until arrested; it doesn't have to make sense, it's just the law. It is a left-handed fortune that people who act in self-defense are routinely arrested. It may be called something else such as "detained" or given the "Alice in Wonderland" explanation "You're being handcuffed for your own protection." Whenever a person is not allowed to leave, he is placed under arrest regardless of descriptive terms. If one is arrested, generations of TV shows advise us to remain silent.


Western Missouri Shooters Alliance President Sheila Stokes-Begley employs a cell phone and CZ75 compact.


If the circumstances are ambivalent, simply state a fear of being sued, and demand a lawyer to protect against frivolous litigation. Bernard Goetz was acquitted of criminal charges in the shooting of four thugs on the subway, but was sued for $43 million and lost. Police are frequently sued by criminals and the explanation is likely to ring a bell.

Self-defense cases bring out the curious, the media in the forefront. Comments to friends will be confused and used against you, comments to family will be mistaken and used against you. Both family and friends can be subpoenaed and forced to testify against you. Comments to the media will be sensationalized and this is never good. The New York City prosecutor's office had determined not to charge Bernard Goetz, until he made unwise remarks to the news media. At some point a statement must be made. The impression is that the earlier a statement is made, the more reliable it is. In reality, the earlier a statement is made, the less reliable it is. The effects of stress will confuse the statement and even cause temporary amnesia. Inaccuracies in the initial statement will convince authorities that the survivor is both a liar and a murderer. A lawyer must be immediately engaged to organize the statement.

A lawyer is a professional storyteller. He will not tell the client how to lie, he will tell him how to tell the truth, a more complicated process than most imagine. The statement must contain facts which track the elements of self-defense. In the case of defense of home or defense of other persons, there may be other elements as well. Knowledge of the assailant's reputation for violence would certainly be relevant. The most important element to include is fear. A police statement is no place for macho posturing. One cannot use violence against another person unless in fear of life or limb. The survivor must go over every detail of why he or she was terrified, weak-kneed, pants-pissing afraid. If one does foul one's pants, a not uncommon event, make sure that goes into the statement. No matter how ineffective a storyteller the survivor might be, the jury is sure to believe that.

(1)1 A City Marshal is a law enforcement officer position used in Third and Fourth Class towns in Missouri.
(2) State v Beeler, 12 S.W.3d 294 (Mo. 2000) at 296.
(3) State v Kinder, 942 S.W.2d 313 (Mo en banc 1996) at 325.
(4) State v Six, 805 S.W.2d 159 (Mo. Ban. 1991) at 167.
(5) Taken from the Western Missouri Shooters Alliance "Stay Out of Jail" card, see www.WMSA.net.
(6) A claim I have heard, even when false.

Kevin L. Jamison is an attorney in the Kansas City Missouri area concentrating in the area of weapons and self-defense.

This information is for legal information purposes and does not constitute legal advice. For specific questions you should consult a qualified attorney.
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Crafty_Dog
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« Reply #77 on: December 24, 2009, 01:22:19 PM »

http://law.onecle.com/california/penal/197.html
California Penal Code Section 197
Legal Research Home > California Lawyer > Penal Code > California Penal Code Section 197

Homicide is also justifiable when committed by any person in
any of the following cases:
   1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
   2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,
   3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished; but such person, or the
person in whose behalf the defense was made, if he was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide was
committed; or,
   4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace.
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« Reply #78 on: December 24, 2009, 07:22:38 PM »

http://69.39.146.6/Upload%20Files/WebPages/Attorney%20Resources/juryinstructions/criminaljuryinstructions/1generalinstructions/ms07-111.htm

CR07-111                   07/09/07

 

SELF-DEFENSE (USE OF DEADLY FORCE)

            Evidence has been introduced bearing on the issue of self-defense, as justification for the killing of (victim)_______________.  The State bears the burden of proving that the killing was unlawful.  A killing committed in lawful self-defense is lawful, and not a crime.  Here the State must have proven beyond a reasonable doubt that (Def)_______________ did not act in self-defense.  [He] [She] has no burden of proof on this issue.

            A person has the right to defend [himself] [herself] when [he] [she] is attacked, or when [he] [she] reasonably believes [he] [she] is in imminent danger of being killed or suffering great bodily harm.  A person in that situation has the right to use only such force as is reasonably necessary to repel the attack or the perceived imminent danger.

            A killing is justified by self-defense if:

(1)        (Def)_______________ reasonably believed that [he] [she] was in imminent danger of being killed or of suffering great bodily harm, and

(2)        (Def)_______________’s use of deadly force was reasonably necessary to repel the perceived threat.

            The right of self-defense does not require that a person actually be assaulted, but (Def)_______________ must have believed that [he] [she] was in imminent danger of great bodily harm, and [his] [her] belief must have been reasonable under the circumstances.  [His] [Her] expectation of harm must have been based upon fact, and not on some imaginary fear.  Furthermore, if [he] [she] honestly and reasonably believed it was immediately necessary to use deadly force to protect himself from an imminent threat of death or serious bodily injury, the law does not require [him] [her] to retreat.

            Self-defense requires that (Def)_______________ must have had a reasonable fear of imminent harm.  In deciding this issue, you may consider what [he] [she] knew about (victim)_______________ at the time.  You may consider any previous interactions, including any aggressive or hostile conduct by (victim)_______________, and any other evidence you consider relevant, including who started the confrontation.

            When assessing the reasonableness of (Def)_______________’s fear, you may consider the individual characteristics of (Def)_______________ and (victim)_______________, such as their respective size, gender, age, physical condition, strength, stamina, courage, and assertiveness.

            Self-defense permits only the amount of force that is reasonably necessary to repel the perceived harm.  A person may use the amount of force that reasonably appears to be necessary under all of the circumstances known to [him] [her] at the time.  In this case you must decide whether (Def)_______________ reasonably believed it was necessary to use the amount of force that [he] [she] did use.  When a person has reasonable grounds to believe that an assault is imminent, [he] [she] need not wait until it actually occurs before [he] [she] may resort to self-defense.

            Once the issue of self-defense appears in the case, the burden is on the State to prove, beyond a reasonable doubt, that (Def)_______________ did not act in self-defense, or that the force used by (Def)_______________ was excessive under the circumstances.  (Def)_______________ is not required to prove that [he] [she] acted in self-defense.
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Crafty_Dog
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« Reply #79 on: July 28, 2010, 08:53:28 PM »

An interesting thought piece from Gabe Suarez (a former LEO btw):

One of the things that is incessantly being discussed in the CCW/LEO community is the after-event-discourse. In other words, what do you say...or not, after you have whacked an attacker. As expected, the variety of advice is as different as people's choices in guns and ammo. A prevailing attitude is to simply shut up and say nothing under any circumstances. I disagree and here is why -

I have been in more than a few of these and also investigated quite a few of these. I noted some trends and tried to use those trends to my benefits when it was my turn at the plate.

First is the fact that the bad guys will not be "keeping quiet". They will be telling the cops you pulled your gun on them, perhaps create some appearance of racism if they can exploit it, and generally make it look like you are the over-reacting, racist, bad guy. What happened may not be obvious to the cops who come out to investigate...specially if the majority of witnesses are against you.

So picture this scene. Two guys have been, as we used to say, "eye f*cking you", and followed you for some time, maybe yelling threatening stuff at you. While you did your best to avoid the issue, you were unsuccessful in getting away and they pressed the confrontation, attacking you with sufficient force to justify a gun solution.

You shoot one of them, maybe wounding him - maybe killing him, and the other one runs off into the night. You saw the first man drop his pistol in a clump of ivy and the other man throw his knife on a rooftop as he ran away.

You immediately call 911 and give a very cryptic account of what happened..."there has been a shooting...I'm the victim...send help".

 In the meantime, one of the assailants...the one who got away, is also calling. His story is a little different. According to him you called them "Dirty Ghetto Norwegians", and pulled your gun on them, shooting his buddy. As far as the police know...they got two calls. One a cryptic call, from someone who seemed to be concealing something, and another reporting what amounts to a racial hate crime by a right wing Nazi.

They arrive on scene and after controlling the event, ask you what happened. What you do now will have a bearing on the rest of your life.

The guys who advocate saying nothing will not be able to point to the two weapons which were discarded...and which will disappear as soon as the scene is cleared. The police may not even look for them since no one told them they were in existence. No one will tell them you are a good guy who was a victim of an attempted robbery, as the ONLY info paints you as some KKK wannabe.

Sure...you'll have a lawyer...but all of the evidence the police may have collected will no longer be available, and the investigation will not have been an even and equal one, but rather one where you alone are the suspect.

See the point?? I know a man who did just that...kept his mouth shut because of what a shooting instructor advised him to do and he spent several weeks in jail, had two criminal trials, and is now facing a civil suit from one of his attackers.

Is it hard to control your mouth? Yes it is. But no harder than to control your trigger finger, your desire to drink to excess, or to control the vertical displacement of your zipper. On self control, it is a learned thing and must be practiced daily.  Maybe self control is too hard for the modern, self-indulgent, metro-sexual male, but as the Nike commercial said....Just Do It.

It, like many other things, can be trained and developed. If you ignore it, it will never be developed.

Think in these terms...you train gun handling and shooting skills to make them reflexive in the most stressful event someone is ever likely to face....and we tend to do fine. The guys who never train...thinking they will "rise to the occasion" invariably fail. To say, "I will simply say nothing", is in that same line of thinking is it not?

What I have done, with success, is this. I give a very limited statement, focusing on the actions of the bad guys, and them excuse myself from any further questions until my mouthpiece...I mean, attorney, arrives.
Anything I say focuses on what the bad guy(s) have done and not on what I may have done. Something like this -

"Officer. I am glad you are here. Thank God."

"I am a good guy. I was minding my own business on my way home when those two guys attacked me."

"The one in the blue shirt had a knife. He threw it up there on the roof as he ran away. There should be some blood on it from my arm when I blocked his attempt to stab me."

"The guy on the gurney was armed with a pistol. He dropped it right there in that pile of ivy when he fell."

"I was terrified. I am still terrified.  Boy am I glad you guys are here. "

"Listen...I am still a little shaken up. I want to cooperate with you guys. This has never happened to me (or this hasn't happened in a while). I have heard stories of good guys getting sued later for saying too much. My attorney is on his way and as soon as he arrives I will be happy to give a full statement with him there. Until then, I think I need to sit down and calm my blood pressure."

At that point things are no longer in your control but you have set the investigation on the proper course, and the truth will be determined instead of being overlooked.
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G M
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« Reply #80 on: July 28, 2010, 10:48:02 PM »

Sounds like good advice to me....
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prentice crawford
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« Reply #81 on: August 01, 2010, 05:07:49 AM »

Woof,
 It is if you have the presence of mind to limit yourself to just those few details and not dropping your guard and saying something that will negate your legal standing of self defense and trust me some cops are very good at getting people to drop their guard, which is a good thing if they are talking to a killer but if they are talking to you after nearly being killed and facing the reality that you just took a human life, well they might get the wrong idea. After all there is a dead body. If you get chatty and say something like, "I didn't mean to kill him.", that could be turned into an admission to involuntary manslaughter. The cop might say, "So it was an accident?" If you say, "No." Then he might say, "So you meant to kill him?". "Which, is it guy you're giving me two different stories here."
 Things can get turned around mighty quick so don't get chatty. I'm not A lawyer and this is not legal advice, just an opinion. Only you are responsible for you.
                                   P.C.
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G M
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« Reply #82 on: August 01, 2010, 03:33:37 PM »

One never uses force to "kill". You use force to stop an unlawful attack on yourself or a 3rd party, which may result in serious bodily injury or death to the attacker/s, but never with the intent to do anything else but stop the unlawful assault, using the appropriate force given the totality of the circumstances. Any verbal interactions with law enforcement should stress the threats you perceived and the information that allows them to understand the totality of those circumstances.
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maija
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« Reply #83 on: August 02, 2010, 06:42:12 PM »

Just saw this:
http://news.yahoo.com/s/ap/us_supreme_court_miranda regarding Miranda rights.
Anyone know anything more about it?
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It will seem difficult at first, but everything is difficult at first.
Miyamoto Musashi.
G M
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« Reply #84 on: August 02, 2010, 07:08:27 PM »

Meh. Minor tweaks. Nothing of importance.
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Crafty_Dog
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« Reply #85 on: April 10, 2011, 11:45:04 PM »



http://www.oregonlive.com/portland/index.ssf/2011/03/oregon_court_rules_teeth_not_c.html
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Crafty_Dog
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« Reply #86 on: April 22, 2011, 11:38:35 PM »

Crime victim uses submission hold, alleged burglar dies from injuries
By Steve Cofield
Martial arts choke holds are no joke. We've talked about that repeatedly after watching television and radio hosts asking MMA fighters to slap on the holds for a photo opportunity. The rear-naked or guillotine choke is a potentially lethal move if not treated with care. Just ask Alex Montalvo, who's in the center of a firestorm in New Jersey.

Back in July of 2010, Montalvo fought off a burglar, slapped on a submission hold and left Douglas Uhler unconscious on the street. Uhler never fully recovered and died yesterday at 19 years old.

On July 31 at 3:39 a.m. in Bridgewater, N.J., Montalvo and his wife heard their car alarm go off. The 42-year-old ran to the street, identified two suspects and chased them to the next block.

With one punch, he knocked out Brian Johnston, 18. That's when Uhler emerged:

Uhler ran out from nearby bushes and shouted: "You want a piece of me, (expletive)?!"

Uhler jumped on Montalvo, who put him in a submission hold, Somerset County Prosecutor Geoffrey Soriano said. The move blocked the teen's oxygen flow, causing a brain injury, Soriano said.

Uhler was taken to Somerset Medical Center and later treated at Robert Wood Johnson Medical Center. He never fully recovered from the injuries:

A once-strapping high school football player, Uhler spent his days in bed or in a wheelchair. He had to be fed through a tube, according to court records. He was non-vocal and unable to walk, sit or roll. He also had poor head control. Uhler had been in and out of several hospitals, including the Children's Specialized Hospital and the Kessler Institute for Rehabilitation.

Back in December, a grand jury indicted Uhler and Johnston on third-degree burglary charges. Johnson pleaded guilty and is awaiting charges. The Uhler family wants Montalvo in a courtroom next, claiming he used excessive force to subdue their son.

"New Jersey law allows you to defend your physical self as well as your property," said Jenny Carroll, an associate professor at Seton Hall Law School. "You're allowed to kill people under certain circumstances, particularly self-defense. If I jump on you, you're allowed to do what is required to make me stop hurting you. But if I pause, you can't just start kicking me in the head."

Carroll said there are no clear-cut answers.

"Here's the trick in this case — did the homeowner exceed the need to protect his property?" she said. "If the kids are still in the process of taking the homeowner's property, then he has a right to defend his property and to use force. The prosecutor must decide whether the homeowner used justifiable force, and whether it was reasonable.

"Even in the heat of passion, if you're trying to subdue someone, it isn't reasonable to kill them," Carroll said.

The response to the story on NJ.com has been heated.

PrivateCitizen:

Self Defense means you are in imminent danger. This man chased these teens down. They were running FROM him. This man needs to go to prison. He is not the hero vigilante some people here think he is!

The attempted theft did not directly lead to the confrontation, his chasing them down did. Any 12 men or women will know that difference.

drock:

So is it wrong to defend one's property? What if this kid got passed out in the sleeper hold and then later recovered and didn't die? The act of putting one in a sleeper hold that you find robbing your car in the middle of the night doesn't exactly seem punishable to me.......you can't punish based on result or consequence but should punish based on action. In my opinion he didnt' do anything wrong and most people would chase down any if they caught them red handed too.

Some commenters even pointed to the rise of MMA as a reason for this tragedy.

mgm8822:

With the new popularity of MMA, every punk who has taken a martial arts class and learned how to throw a punch or put someone in a choke hold thinks they have the right to kick anyone's ass for any reason. We have a lot of unstable people walking around nowadays who are trained in the use of lethal force.

The Uhler family said their son had plans of attending William Patterson University, where he was looking to study sports medicine.

MMA skills used to fight crime took center stage in the last few months when UFC champion Jon Jones and his trainers subdued a burglar in Paterson, N.J. in late March. In mid-February, MMA fan Joe Lozito helped police catch an alleged serial stabber on a New York City Subway.

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G M
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« Reply #87 on: April 22, 2011, 11:56:12 PM »

Lawful self defense.

With one punch, he knocked out Brian Johnston, 18. That's when Uhler emerged:

Uhler ran out from nearby bushes and shouted: "You want a piece of me, (expletive)?!"

Uhler jumped on Montalvo, who put him in a submission hold,
Somerset County Prosecutor Geoffrey Soriano said. The move blocked the teen's oxygen flow, causing a brain injury, Soriano said.
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JDN
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« Reply #88 on: April 23, 2011, 10:23:21 AM »

Or is it "excessive force"?

The move blocked the teen's oxygen flow, causing a brain injury, Soriano said.

Further, as pointed out, Montalvo was not in eminent danger (or any danger for that matter) when he initially saw Uhler. 
"The 42-year-old ran to the street, identified two suspects and chased them to the next block."

Then applied a choke hold causing permanent brain injury.

Doesn't sound cut and dried to me.

I don't know the answer; it will be interesting to see what happens.  But I think one of the lessons here is that you
could be criminally prosecuted and I am willing to wager, there will be a civil suit which may cost the Montalvo a lot
more than his car.

Think twice before you become involved.  And if you do, be willing to pay the penalties.
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G M
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« Reply #89 on: April 23, 2011, 11:07:45 AM »

Being a criminal is, and should be dangerous.

If Uhler had been doing something lawful, instead of commiting felony crimes, then attacking a victim of his felonious conduct, then he'd probably be alive and happy right now.

Good riddance.
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jcordova
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« Reply #90 on: April 23, 2011, 11:16:05 AM »

So true GM I'm with you on that. 
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JDN
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« Reply #91 on: April 23, 2011, 12:04:01 PM »

Being a criminal is, and should be dangerous.

If Uhler had been doing something lawful, instead of commiting felony crimes, then attacking a victim of his felonious conduct, then he'd probably be alive and happy right now.

Good riddance.


In theory perhaps I agree although in my opinion the danger should be commensurate with the situation and the crime.

So maybe if I hear someone breaking into my car, but running away, I should simply shoot them on the street?
Good riddance I say....

Being practical for a moment, if you think about it, I think even you GM will agree that there may be criminal
charges brought against Montalvo and probably will be a serious civil suit brought against Montalvo by Uhler and his family.

A nightmare regardless of the outcome.

I still say think twice, and then one more time before becoming involved.

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Crafty_Dog
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« Reply #92 on: April 23, 2011, 12:27:48 PM »

"Uhler jumped on Montalvo, who put him in a submission hold, Somerset County Prosecutor Geoffrey Soriano said. The move blocked the teen's oxygen flow, causing a brain injury, Soriano said."

A submission hold blocks blood flow and does not attack the windpipe.  Not clear here whether the reporter grasps this distinction.  (Tangent: When I first moved to LA (1982) there was a political fuss over the disproportionate number of black people suffering drastic consequences from police holds that attacked the windpipe.  IIRC police chief Gates said something to the effect that that was because black people didn't have the same responses as "normal people", but I digress , , ,)


"Further, as pointed out, Montalvo was not in eminent danger (or any danger for that matter) when he initially saw Uhler. 
"The 42-year-old ran to the street, identified two suspects and chased them to the next block.""

Are you saying that Montalvo has to be in "eminent danger", or imminent danger for that matter  evil cheesy to try to catch the bad guy?



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JDN
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« Reply #93 on: April 23, 2011, 12:58:33 PM »


"Further, as pointed out, Montalvo was not in eminent danger (or any danger for that matter) when he initially saw Uhler. 
"The 42-year-old ran to the street, identified two suspects and chased them to the next block.""

Are you saying that Montalvo has to be in "eminent danger", or imminent danger for that matter  evil cheesy to try to catch the bad guy?


Ummm Uhler has since died from Montalvo's action.  Uhler was breaking into a car.  A piece of property.  And he was running away.
Without the property!   shocked

So I guess yeah, before killing someone I need to feel that I or a loved one are in imminent danger.

Obviously something went terribly wrong with the supposed "submission" hold.

Unless there is imminent danger, if you kill someone, if not criminal charges, at minimum expect to face a very serious civil lawsuit.
Heck, I bet even if the police had done the same, submitted/choked and killed a teenage car thief running away, a huge dollar settlement offer would be on the table.

And it looks worse if a private citizen does the same.

Uhler is dead and I bet Montalvo's nightmare is just beginning. 

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G M
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« Reply #94 on: April 23, 2011, 06:07:41 PM »

Again, I will point out that Uhler left his hiding place in the bushes and attacked Montavalo, which resulted in his being restrained. Had Uhler remained in hiding, or had continued to flee (or not committed felony crimes) rather than attack his victim, he'd not have been restrained with the negative impact on his health.

I know of a case where a police officer inflicted serious, permanent injuries on a bad guy. The officer was cleared on dept/criminal side. In the civil side, he was found culpable, but the jury gave the plaintiff a whopping dollar in damages.   grin

That was in NYC, not more rational places like Texas, where you are much more likely to have clear thinking prosecutors and jury pools.

Quick research shows that NJ has statutes that empower citizens to arrest. As far as litigation, it's expensive and unless Montavalo is seriously wealthy, no P.I. attorney would take the case on without serious money up front from Uhler's family. Litigation is godawful expensive, and with no deep pockets, no lawsuit is likely.
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Crafty_Dog
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« Reply #95 on: April 23, 2011, 06:20:11 PM »


In honor of my Jewish heritage, allow me to point out

http://dogbrothers.com/store/index.php?cPath=46

 cheesy
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G M
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« Reply #96 on: April 23, 2011, 06:32:30 PM »

 grin
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JDN
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« Reply #97 on: April 24, 2011, 09:13:38 AM »


I know of a case where a police officer inflicted serious, permanent injuries on a bad guy. The officer was cleared on dept/criminal side. In the civil side, he was found culpable, but the jury gave the plaintiff a whopping dollar in damages.   grin

Quick research shows that NJ has statutes that empower citizens to arrest. As far as litigation, it's expensive and unless Montavalo is seriously wealthy, no P.I. attorney would take the case on without serious money up front from Uhler's family. Litigation is godawful expensive, and with no deep pockets, no lawsuit is likely.

Crafty mentioned LAPD's use of the chokehold back in the 80's and the repercussions thereof.  Plus I think a LAPD policeman has and should have a much greater leeway than a private citizen to use force.

Final Suit Over LAPD's Use of Chokehold Settled
September 29, 1993|JAMES RAINEY | TIMES STAFF WRITER
Ending a long string of lawsuits over the Los Angeles Police Department's use of the carotid chokehold, the City Council on Tuesday agreed to pay $450,000 to the father of a man who died 11 years ago in police custody.

James Mincey Jr.'s death was the 16th over seven years that was attributed to the chokehold, and it led to the Los Angeles Police Commission's virtual ban on the use of the tactic.
Tuesday's City Council vote settles the last in a series of cases against the city,...

The payment to James Mincey Sr. is in addition to $1.1 million paid to four other Mincey relatives.
__________

Notice the large amounts paid in the early 90's, twenty+ years ago.  Even then, each incident probably cost LA (my tax dollars) over one million dollars.   And there were 16 different incidents.  LAPD paid, and paid and paid.  Imagine in today's dollars, each settlement would be a lot larger. 

And maybe you are right; maybe Montavalo isn't seriously wealthy.  So after they take his middle class savings, they take his small house, his car  shocked and put him in bankruptcy,
only then will they leave him alone.  Plus through this whole ordeal he might lose his job (missing work too often), his family will suffer, etc.

For what, to chase a teenager attempting to steal his car, yet they had already run away?

Montavalo "won" the fight, but he LOST. 

The lesson here?  If your life is not in imminent danger, simply call the police.  Don't go chasing after someone for a piece of property.


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Crafty_Dog
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« Reply #98 on: April 24, 2011, 03:26:10 PM »

For the record, I am not clear that the article is accurate.  I could be wrong, but the way I remember it is that it was not carotid chokes that were the problem but windpipe attacks.

Question for all:

We all get the point stated by JDN here.  Question presented:  What of the feeling that something is not right with letting someone keep trying until they get it right?  What of the feeling that society is safer when there are those amongst us willing to step forward? (The Unorganized Militia)  Certainly doing nothing is a viable, respectable, and often correct option, but does that mean we should criticize those who have things go sideways (this is different that a study of what happened) when they do step forward?  Do we not praise those who step forward when things go well?
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JDN
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« Reply #99 on: April 24, 2011, 07:01:38 PM »

Marc; I think your question truly is the issue.

For my two cents, I think if someone less stronger  than I, that's not saying a whole lot  smiley is in imminent danger, I will do whatever it takes to protect them
or at least save them from serious bodily harm regardless of the consequences.  It just seems like the right thing to do.

The recent incident at Dodger Stadium is a good example; of course it was deplorable, but I don't understand why someone didn't step up and say, "enough". 

For the record, my objection to the this particular NJ incident posted here and the repercussions thereof was because it was over theft of property; property that the perpetrator had wrongly attempted to steal, but he had already had left the scene and was running away down the street.  That is not worth a life.  I believe in an eye for an eye, but not a life for car.  And while this story
had a "happy" ending, it might be your life next time.  It's not worth it.  Call 911.

Further, I am not saying to not "step forward"; just think about your actions before you do.

But others might disagree; there is no right or wrong answer.  I too wanted to open debate on the question.
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