Self-Defense and other law related to martial arts

[Crafty Dog]

Found at:
http://martialarts.about.com/gi/dynamic/offsite.htm?site=http%3A%2F%2Fwww.it
tendojo.org%2Farticles%2Fgeneral-4.htm

Self Defense Law and the Martial Artist
by Peter Hobart, Esq.

Introduction

Anthony Ervin was a career criminal. He was arrested eight times on assorted robbery, weapons, and assault charges between 1987 and 1996. On October 8, 1996, he acosted Courtney Beswick, a blind man who must have seemed like an easy target. After Ervin's demands for money were repeatedly refused, he attacked Beswick. Beswick, a long time practitioner of martial arts, threw his assailant over his shoulder, onto the pavement. The fall broke Ervin's neck, and he subsequently died.

Having survived this terrifying ordeal, Beswick still faced the possibility of criminal and civil charges. In this case, however, the police and estate of the deceased decided not to file charges against Beswick, since he clearly acted in self-defense.

But this outcome is hardly the rule in the United States. In fact, a recent law review article indicates that a disturbing trend toward targeting martial arts practitioners is emerging in the field of tort law.

With this in mind, it seems that the modern martial artist must have at least a rudimentary understanding of the applicable law if he ever hopes, or fears, that his training may be called upon outside the d?j?.

In an effort to provide some practical answers, this article will address the national majority position, and any substantial minority positions regarding criminal and civil liability with respect to the use of force in defense of self, defense of others, and defense of property. Pennsylvania law, where relevant, will also be examined. The majority position reflects
the practice of most states, and is increasingly consistent with the Model Penal Code (MPC). Pennsylvania law regarding these issues is largely based on the MPC.

The author regrets the ubiquity of the terms "reasonable" and "generally" in this article - that these terms are essential merely reflects the complexity, and often the vagueness, of the law.

Case law varies widely among jurisdictions, and is constantly modifying and reinterpreting the rules of law. In an effort to provide some concrete conclusions, a lsit of relatively unqualified guidelines is provided at the end.

CRIMINAL LIABILITY

Self-defense, non-lethal force:

Criminal liability is distinguished from civil liability in that it is the state which brings charges against the defendant, as opposed to the victim or his estate. The general criminal law allows for the use of necessary and proportionate, non-deadly force in self-defense anytime the victim reasonably believes that unlawful force is about to be used on him.
Pennsylvania law is generally consistent with this position. The critical language under this standard is 'reasonable belief', 'unlawful', 'about to' and 'necessary and proportionate'.

In order to establish a reasonable belief, the court will use both a subjective and an objective standard. The subjective standard determines whether this defendant did in fact believe that an attack was imminent (whether reasonably or unreasonably). In arriving at this conclusion, the defendant's state of mind is relevant. Thus, a paranoid defendant might
introduce evidence of his condition to show that his belief, however unreasonable, was at least genuine.

The reasonableness of the defendant's actions is judged by an objective rather that a subjective standard. The reasonable person standard is one of the most difficult aspects of the law to understand. In an effort to do
justice to both sides, the law requires the trier-of-fact (usually the jury) to consider whether an ordinary person in the defendant's position would believe that force was about to be used against him. The defendant's (and the assailant's) physical characteristics and past history will be taken into account, but mental condition is of no concern. Thus, comparative size, weight, strength, handicap or pre-existing injury may support a reasonableness finding, but unusual sensitivity or fear will not.  There is no simple formula for the legal application of force in self-defense under American law. The confusion is due, in part, to the complexity of the issue itself, and in part to the variety of state laws within the American legal system. The requirement that the force defended against be unlawful simply excludes the right of self defense when an 'assailant', such as a police officer, is legally authorized to use force.  It must be noted however, that a majority of jurisdictions allow the use of force, including deadly force, in resisting an attack by a person not known
to be a police officer, and the use of non-deadly force against a known police-officer attempting to make a wrongful arrest. Pennsylvania does not allow the use of force in resisting wrongful arrest, but it does allow the
use of force if an arresting officer unlawfully threatens to use deadly force, or does not identify himself.

'About to' refers to the imminence requirement for the right to self-defense. It is not enough that the assailant threatens to use force in the future, or upon the happening of a certain event. Thus the statement "If you do that one more time, I'll punch you" is insufficient to trigger the right to self-defense. The threatened use of force must be immediate.

The force used in self defense must reasonably appear to be necessary to prevent the attack, and must be proportionate to the gravity of the attack. Thus, for example, if an assailant is about to slap the victim, responding with the use of a fire-arm would be excessive and therefore beyond the scope
of the right to self-defense. The proportionality standard under Pennsylvania law is articulated as a prohibition on the use of excessive force, but the fact that death results does not automatically produce a finding of excessive force.

Self-defense, lethal force:

The standard for use of deadly force is, predictably, higher. The general criminal law allows for the use of deadly force anytime a faultless victim reasonably believes that unlawful force which will cause death or grievous bodily harm is about to be used on him. Again, Pennsylvania law is generally
consistent with this standard.

The faultlessness requirement does not mean that the victim must be pure of heart and without sin. It does mean that the right of self-defense will not be available to one who has substantially encouraged or provoked an attack. The general rule is that words alone are not enough to be considered a
provocation under this standard, but there are exceptions. For example, saying 'I am about to shoot you' might well constitute sufficient provocation.

One of the circumstances which helps to determine the level of threat encountered by the victim is the nature of the assailant's weapon (if any). As a general rule, anything which might be used to kill a person, no matter how odd, is considered a deadly weapon. Thus, a chair, a lamp or a
screwdriver may all be considered deadly weapons. In some instances, the law will treat a trained fighters hands as a deadly weapon, but in order to trigger the right to self-defense using lethal force against such a person, the victim must, of course, know of the attacker's special training.

U.S. courts are split with respect to an additional factor in the lawfulness of the use of deadly force in self-defense. A minority of jurisdictions require a victim to retreat to the wall if it is safe to do so, before using deadly force. 'Retreat to the wall' is generally construed to mean taking any reasonable and apparent avenue of exit. However, even minority jurisdictions do not require retreat under three circumstances. There is no duty to retreat from one's own home, if one is being or has been robbed or raped, or if the victim is a police-officer making a lawful arrest. In 1996
the Pennsylvania Superior Court held that "although a person is afforded discretion in determining necessity, level and manner of force to defend one 's self, the right to use force in self defense is a qualified, not an absolute right." Pennsylvania is a retreat jurisdiction.

Even an initial aggressor may be given the right to self-defense under certain circumstances. If the initial aggressor withdraws from the confrontation, and communicates this withdrawal to the other party, he regains the right to self-defense. Also, if the victim of relatively minor aggression 'suddenly escalates' the confrontation to one involving deadly force, without providing adequate space for withdrawal, the initial aggressor may still invoke the right to self-defense.

Third parties:

The right to defense of others turns largely on the reasonableness of the belief that the victim deserved assistance. A minority of jurisdictions require that the rescuer be a member of the victim's family, or the victim's superior or employee. Similarly, a minority of jurisdictions require that
the rescuer's belief be correct, reasoning that the rescuer 'merely steps into the victim's shoes', while the majority requires only that it be reasonable. Pennsylvania law imposes no such restrictions. It does, however, require the additional showing that the rescuer believed that his
intervention was necessary, and that the rescuer retreats if the victim would be required to do so.

If in the course of intentionally defending himself or another, a defendant recklessly or negligently injures or kills a third person, self-defense will not bar liability, but it will reduce the gravity of the charge from an intentional crime to a reckless or negligent crime.

Defense of Property:

In Pennsylvania, and a majority of jurisdictions, a victim has the right to use non-deadly force in defense of his dwelling when, and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate another's unlawful entry or attack upon his dwelling. Deadly force
is authorized when violent entry is made or attempted and the victim reasonably believes that it is necessary to prevent an attack on his person. It is also authorized when the victim reasonably believes that such force is necessary to prevent entry into the dwelling by one who intends to commit a
felony therein. The rationale for allowing self-defense in these scenarios is based upon the right of inhabitants to be secure in their homes, rather than the right to defend property, as can be demonstrated by the law regarding defense of uninhabited property.

Non-deadly force may be used merely to defend one's property from imminent, unlawful interference. Force may not be used if some other, reasonable means would have the same effect.. The only exception to the immediacy requirement is that force may be used to regain wrongfully taken property after the taking (i.e. no longer a prevention of immediate interference) if the victim uses such force in 'immediate pursuit'. The legal rationale for this exception is, of course, that the interference continues as long as the
aggressor retains control of the property.

Deadly force may never be used in defense of uninhabited property. The popular misconception with respect to this law emanates from confusion over situations where the right to defend property and the right to defend persons therein overlap. Pennsylvania allows the use of reasonable, non-lethal force in the protection of property and notes that such a defense of property will not be regarded as 'provoking' an attack on the defender's person. Pennsylvania allows the use of force necessary to eject a trespasser, short of inflicting serious bodily injury. If the defendant reasonably believes that the trespasser intended to commit a felony, then
serious bodily injury is justified. When two people claim ownership over a piece of personal property, Pennsylvania law provides that force may not be used to prevent one from taking it.

Use of force to prevent crime:

A citizen has a privilege to use non-deadly force which reasonably appears necessary to prevent a felony, riot or other serious breach of the peace, and some states (such as California) have extended this privilege to the prevention of any crime. Deadly force may be used only to prevent the
commission of a dangerous felony, involving a risk of human life. A citizen has the same right as a police-officer to use non-deadly force to effectuate an arrest if he reasonably believes that the alleged criminal has in fact committed the crime. A private citizen may also use deadly force to effect
an arrest, provided the alleged criminal is actually guilty. Here, a reasonable belief is not enough.

Pennsylvania phrases this provision differently. A private citizen is justified in using the same amount of force as if he were directed to prevent the crime by a peace officer, except that lethal force may not be used unless the defendant reasonably believes that it is necessary to prevent death or serious bodily injury to himself or another. At the direction of a peace officer, a private citizen need not retreat from making a lawful arrest, and may use any force he believes necessary to defend himself or another from bodily harm while making the arrest.

CIVIL LIABILITY

In a civil case, it is the victim (or his estate) bringing the action. While there are many similarities to a criminal charge, it is important to understand that the civil plaintiff must only prove his case 'by a preponderance of the evidence'. This is a much lighter burden than the criminal standard of 'beyond a reasonable doubt'. The principal tort actions which a victim who defends himself might face, include battery, assault and
wrongful death.

Battery and assault:

In virtually every jurisdiction (including Pennsylvania), to make out a case for battery, the plaintiff must show that the aggressor made harmful or offensive contact with the plaintiff's person, that the aggressor intended to bring about such contact, and that the aggressor's actions in fact caused
the contact. While harmful contact is easily determined from the specifics of the situation, offensive contact is judged by the objective, 'reasonable person standard'. As a prominent Philadelphia law professor explains, "tapping a person on the shoulder is not reasonably 'offensive' whereas, tapping someone 'considerably lower' would be." 'Plaintiff's person' means in general anything connected to the plaintiff's body. This would include a hat, a cup in plaintiff's hand, and on a recent bar exam, even the car in which the plaintiff was sitting! Thus, snatching a book from a person might well constitute a battery.

The causation requirement can also be deceptive. Not only would a thrown projectile which strikes the plaintiff constitute a battery, but ducking to avoid such a projectile, and hitting one's head would also be actionable. Moreover, no actual damage need occur to bring an action for battery. The
offensiveness of a non-harmful contact will support an award of nominal damages.

Assault, briefly, is the creation of a reasonable apprehension of an imminent battery, in the victim. Simple fear is not enough. The aggressor must have a present apparent ability to bring about such contact. In other words, the victim must actually expect to be struck or touched. Conversely, the fact that the victim was not in the least bit afraid does not bar
recovery. Thus, a professional boxer may successfully sue a weakling for assault, even though there was no actual danger of being hurt.

Words are generally not enough to support an action for assault, but words coupled with some act may be. For example, shaking one's fist and threatening with words might well constitute assault. Similarly, a conditional threat such as 'your money or your life' is also sufficient to support a charge of assault. Like battery, no actual damage need result.

Wrongful death and survivor acts:

Although traditionally any tort action abated at the death of the victim or the perpetrator, most states have now enacted 'survival acts' for wrongful death (it is from this old common law rule that the concept of escaping liability by killing, rather than injuring a victim, derived). Now the estate of the deceased may bring an action against the killer for all
damages which occurred between the commission of the tort, and death (e.g. pain and suffering).

Further, every state has now enacted a statute providing for a civil remedy for wrongful death. Here, the a designated representative sues for the pecuniary injury to the next of kin (lost wages, lost companionship). While the wrongful death action is quite complicated, the critical aspect for present purposes is that the same defenses against the plaintiff apply as if the victim himself were suing.

Self-defense in tort law:

While the principles of self-defense at tort law are similar to those at criminal law, the mode of analysis, and areas of emphasis differ. In general, self-defense is valid when a person has reasonable grounds to believe that he is about to be attacked. Under these circumstances, he may only use such force as is reasonably necessary to protect against the
potential injury. Since only reasonable ground are required, a genuine mistake with respect to the attack will still support the right to self-defense. Once the attack or tort has ended, so does the right to self-defense. Retaliation is never permitted.

As at criminal law, there is generally no duty to retreat, and deadly force may be used to prevent death or serious bodily harm. Even in the minority jurisdictions which require retreat (like Pennsylvania), there is an exception to the requirement if the victim is in his home. Although the attacker has no right to self defense, if the attack is non-deadly, and the victim responds with deadly force, the aggressor may defend himself with deadly force.

Third parties:

Under tort principles, a victim who accidentally injures a third-party in the course of defending himself is also protected from suit by that third party. A majority of jurisdictions also allow the defense of victims only if the victims themselves have a right to self-defense. Thus, if the rescuer makes a mistake regarding the victim's right to self-defense, he too will be liable. However, there is a strong modern trend toward protecting rescuers from suit if their wrongful assistance of a victim is based on a reasonable mistake (Pennsylvania tort law allows for a reasonable mistake). The rescuer may use as much force as the victim could have used in self-defense.

Defense of property:

In the defense of property, a request to desist prior to the use of force is required, unless it would be futile or dangerous. There is almost never a right to self defense when the 'intruder' in fact has a right to be on the property. Thus, it is unwise to attack a supposed intruder without
ascertaining his identity first! A significant exception occurs when the 'intruder' contributes to the ambiguity regarding his identity or purpose.

As at criminal law, there is a right to use force in the recovery of stolen property, as long as the victim is in 'hot pursuit' of the taker. Also as under the criminal standard, deadly force may never be used simply to defend property. Finally, the right to trespass for necessity supersedes the right to self-defense. Thus, a home-owner is not privileged to use force to turn away those who need refuge from an emergency.

Prevention of crime:

Since the right to use force is limited to the prevention of the commission of a tort in civil actions, one who subdues an attacker and then continues to use force to hold him until the police arrive, must be aware that he has moved over from a tort privilege, to the privilege of arrest under criminal law.

Martial arts teachers' liability:

Under the Theory of Agency, the principal is liable for unlawful acts which he causes to be done through an agent. There are three possible ways in which a martial arts instructor might be held liable as the principal for the unlawful acts of his students, as agents. First, if the instructor appears to ratify or approve of unlawful conduct, he may be held liable for the commission of such acts. Thus, a dojo which encourages the use of excessive force, or lethal force in inappropriate situations may be seen to ratify and approve of unlawful conduct. Similarly, an instructor who continues to teach a student who has abused his knowledge may be held
responsible, if not liable, for subsequent torts.

Second, an instructor may be held liable for having entrusted a student with 'an extremely dangerous instrumentality'. "[W]hen an instrumentality passes from the control of a person, his responsibility for injuries inflicted by it ceases. However, when an injury is caused by an exceptionally dangerous
instrumentality, or one which may be dangerous if improperly used, a former owner or possessor may ... be charged with responsibility for [its] use...." The implications for instructors who teach potentially lethal techniques is
clear.

Finally, an instructor may be liable for harm to the student or other parties as a result of negligent instruction. Anyone who holds himself out as an expert capable of giving instruction is expected to conform to the standards of his professional community. Thus, any instructor who, by his own negligence, fails to provide, teach and require adequate safe-guards and
supervision, may be liable for any resulting injury.

CONCLUSION

The law, and the facts underlying a cause of action are rarely clear-cut. Statutes and case law vary widely from jurisdiction to jurisdiction. Lawyers are skilled at recasting the facts in their client's best interest.  Juries are given broad discretion with respect to determining guilt or innocence, and may feel the need to compensate an injured party regardless of fault.
And even if a defendant successfully raises one of the defenses discussed above, litigation is costly both in terms of time and money.

It would be foolish to try to rely on a general understanding of the legal principles at work in these situations, in order to engage in behavior which falls just within the realm of legality. Rather, the wise martial artist will attempt to avoid any hint of liability or criminal conduct. The following general principles may be of value in this endeavor.

. Avoid physical confrontation. If there is a safe avenue of retreat, use it (regardless of jurisdiction). At a minimum, retreat to the wall.

. If confrontation is inevitable, give a warning when defending property, unless doing so would be dangerous or futile (which is often the case). This does not mean that you should list your qualifications, as the samurai of old were wont to do. Rather, you should simply give the aggressor notice that you intend to use force against him, in order to allow him to reconsider his position.

. Ensure that you are not seen as the aggressor. This does not require 'taking the first hit', but it does require being certain that physical contact is imminent prior to reacting (for an in-depth examination of the danger here, see the Goetz case).

. Be aware of the aggravating and mitigating factors. Is there a size, age, or ability differential? Are you or the attacker armed or trained? All of these factors will help you determine the appropriate level of force.

. Use only the amount of force necessary to deter the attack. This does not require the use of ineffective technique, but rather mature reflection prior to a confrontation about what technique (including flight) is appropriate in which situation. It would be wise to introduce this as part of training.

. Once the initial threat is neutralized, stop. This does not mean that you must give your opponent a fighting chance. Rather, you may immobilize the attacker while awaiting the police, but do no further damage.

. When intervening on behalf of a third party, ensure (as much as possible) that the intervention is justified and necessary. As a rule, interference in domestic disputes is unwise. Reconciliations can mean trouble for the would-be rescuer.

. Remember that, in this country, human rights are superior to property rights. The use of force in the protection of property is very risky.

. As an instructor, you are both morally and legally responsible for the actions of your students, both inside and out of the dojo.

As an instructor, you should know the law at least to the extent of whether your state is in the majority or the minority with respect to the issues raised above. If you do not have a lawyer or law student in your dojo, any law school library will have a copy of: Your State Statutes Annotated (i.e., Texas Statutes Annotated). Simply look in the index under the headings listed in this paper for the applicable law.

DISCLAIMER: This analysis is not intended as a comprehensive statement of the law, or a legal opinion. It represents a general overview of the law, accurate to the best of my knowledge, at the time of publication. It is not
intended for public consumption, and should not be relied upon as a defense to any criminal or civil charges or complaints.

Peter Hobart is a prosecuting attorney. Currently a member of the Itten D?j?, Mr. Hobart has trained for many years and is a licensed instructor of Santo Niten Ichi Ry? kenjutsu and kempo, and holds black-belt rank in aikijutsu. He can be reached via e-mail addressed to "kishido@ccis.com."

[argyll]

Great analysis of the use of force issues, I am not as convinced by the author's take on potential dojo liability, I'd like to see a citation to some case law for the proposition that knowlege can constitute an "extremely dangerous instrumentality," or that a student is a teacher's agent.

Best regards,

Argyll

[Anonymous]

Woof Argyll et al:

  A precise observation on your part.  I agree.

  The author describes himself as a "prosecuting attorney".  I'm not sure what that is, but if it is just a slick way of describing himself as a plaintiff attorney, it may explain the shadings of some of his points.  

  I'm over 20 years out of the practice of law and lack the time or financial incentive to do the research necessary to have the right to quibble too much with this piece, but do note that I share your concern on this point and others as well.

Still, I think the piece a useful overview for laymen to get their thinking in gear.

Crafty

[Crafty_Dog]

TTT

[Crafty_Dog]

Bringing this over from http://dogbrothers.com/phpBB2/index.php?topic=1552.0
===================================================


I have never Hear of Ayoob, but I will ask one simple question: is he a lawyer?

If the answer to the question is "no," then what are you doing listening to him for legal advice?
Would you go to a commercial real estate developer if you needed open-heart surgery? If he is a lawyer, then my next question is: "in what jurisdictions is he licensed to practice?" Unless the answer to that question is "all 50 states and the District of Columbia and territory of Puerto Rico (which would be a REALLY neat trick)," I would confine his area of expertise to where he is licensed and where he has practiced law. Emphasis on PRACTICED law.

The law is not something you can pigeonhole, especially for something as complex as "self defense." Add a weapon to the mix and you are really moving on thin ice.

You want legal advice on self defense in your jurisdiction? Go talk to a licensed attorney who deals with criminal law in your jurisdiction. Pay for a consultation (although many criminal defense attorneys give free consults). It will be an hour well spent.

______________________________________________________________

@ Tom guthrie - I was once put in a situation when I was younger with a couple friends of mine and my Girlfriend who at the time was going to have my son. So it was about 4 of us and we were attacked by a whole heaping alot of guys. The situation took a turn and my friend did what he had to do and added a weapon into the situation. And "We" were arrested for this attack.

I watched how the Police, Dets. And the DA were putting holes though the situation. They told us we could have ran, this and that. And my favorite we could have used reason...

I remember saying to the DA...You wanted me to try and talk to 15 drunk guys who were beating our ass?

To make a long story short. After they looked at the tape of the chaos. They said that we had gaps were we could have run and we did not take that chance to do so...I don't know to this day where these chances to run were.

But I am 2 other friends were let free and my friend who pretty much saved our lives in self defense got locked up for 5 years. All for bringing a weapon into the Mix.

I have a good friend who is a Police officer and one who is a Lawyer who I spoke with years later down the road about this and both told me. " It really all depends on the "City, State and DA" And if someone attacked you "Was your life on the line" And the one I really loved. Was just because you thought your life was on the line. Does not mean it really was and they people who are going to be in control of your freedom may not think the situation warranted using a weapon.

Christopher, who is my friend who is a Lawyer in LA also began to tell me that in cases that involve a weapon it comes down to how you used the weapon and what was the weapon...I was like "WTF” If you stab, If you slash, Did you hit them in the head, Did you runaway screaming for your life and were blocked in. Did you look for help? All these factors can decide freedom and losing your freedom.

Case that popped up in California in my neck of the woods. fight breaks out at a party. Guy A starts throwing fist with guy B..Guy A knocks down guy B and starts kicking him. Guy B gets up and grabs a bottle and Hits A with it

Guy B had to do time...Later I found out though some channels that there was no reason for Guy B to use a weapon. I asked "Wasn’t this guy getting his ass beat? I thought he was on the ground getting kicked?"

The response I got was. Guy A was not attacking him in a life threaten manner.

The law is tricky I guess. It all depends and I always suggest people find out what the law is in their neck of the woods or the woods you patrol...What you deem as Self Defense might not be what the DA deems as self-defense.

I did however find out a little more on Ayoob he was a police officer in Concord, New Hampshire...I don't think Ayoob is a professional when it comes to States laws 2,000 miles away or maybe even ones next door.


@ Marc - You were a lawyer, Correct? Do you have any imput on the situation?

[Crafty_Dog]

Max:

I think if you look a bit further you will find that a lot of people regard Ayoob as a subject matter expert.  His book "In gravest extreme" (or something close to that) is considered must reading by many.

As for my legal qualifications, I think what you write will lead to you the sound conclusion that my background (one year of International Law in Washington DC some 25 years ago) is of minimal validity here.    Apart from my interest in the subject at hand, and a good education helping me to understand what I read, I have no particular qualifications whatsoever.

The Adventure continues,
CD

[Maxx]

@ Marc
   I am sure that Mister Ayoob is good at what he does but we all know that nobody in the legal world can give you a forsure amount of information when it comes to what Self Defence , A Fight and Combat is esp. when you have to take into account of everyones look into what went down and how it went down.

Am I wrong for looking at it that way and finding out for sure people local laws?

[boomvark]

Crafty, thank you for posting that article!  It bears repeated readings.

Regarding some of the understandable concerns and valid points that Maxx has addressed to me:

First off, I made the mistake of invoking a name that (clearly) not everyone is familiar with.  My bag.

I have never Hear of Ayoob, but I will ask one simple question: is he a lawyer?

No, he isn't, and doesn't claim to be, and I don't regard him as such.  His courtroom role is as an expert witness for the defense in police and civilian shooting cases.  He's been doing that since well before there was any such thing as the Internet; he does his homework meticulously, and has a good track record.  I do not, however, take all of his (or anyone's) opinions as gospel.

Your next question is valid too, despite seeming to make some fairly negative assumptions about my judgement:

If the answer to the question is "no," then what are you doing listening to him for legal advice?

I'm not.  He doesn't give legal advice, unless you're using that term a whole lot more broadly than I would.  In essence his approach is more like "Look, this is how the courtroom action played out in such-and-such a case I was involved with in jurisdiction X, and here are the participants' stated reasons why.  This is how a similar case might turn out in jurisdiction Y, and here's why I say that.  However, neither I nor anyone else can predict with even reasonable certainty how a similar case would play out in your jurisdiction.  Furthermore, I am not a lawyer.  For your own sake, find the best one you can and take it up with him."

That seems like a fairly responsible approach, to me.

Would you go to a commercial real estate developer if you needed open-heart surgery?

Of course not.  On the other hand, if I needed open heart surgery and an RN or PA whom I respected expressed an informed opinion on the available surgeons, I'd at least take his assessment into account.  That's a more applicable analogy.

If he is a lawyer, then my next question is: "in what jurisdictions is he licensed to practice?" Unless the answer to that question is "all 50 states and the District of Columbia and territory of Puerto Rico (which would be a REALLY neat trick)," I would confine his area of expertise to where he is licensed and where he has practiced law. Emphasis on PRACTICED law.

You forgot Guam. 

Seriously, if you're trying to emphasize here that the laws vary, sometimes catastrophically, from one jurisdiction to another, and that what applies in Florida or New Hampshire probably won't apply in Massachusetts or California, I'd think that would be obvious.

The law is not something you can pigeonhole, especially for something as complex as "self defense." Add a weapon to the mix and you are really moving on thin ice.

True.

You want legal advice on self defense in your jurisdiction? Go talk to a licensed attorney who deals with criminal law in your jurisdiction. Pay for a consultation (although many criminal defense attorneys give free consults). It will be an hour well spent.

Of course.  Ironically, I've seen Ayoob say very similar things repeatedly.  More particularly, he strongly recommends consulting an attorney with a (good) proven record in self-defense cases within your jurisdiction.

[Maxx]

@ boomvark - Sorry if it sounded like I was negative assumptions about your judgement. I did not mean to come off as a @$$hole, If it seems that way I Apologize.

[boomvark]

@ boomvark - Sorry if it sounded like I was negative assumptions about your judgement. I did not mean to come off as a @$$hole, If it seems that way I Apologize.

Hey man, no harm, no foul.

You've had some pretty painful experience that relates directly to the topic, and I'll bet you've run into a lot of people on the web who don't put much thought--if any--into the legalities of self defense.  Admittedly I left myself open to a certain amount of misinterpretation.  I really don't think our views on the matter are all that far apart.

[grimel]

@ Marc
   I am sure that Mister Ayoob is good at what he does but we all know that nobody in the legal world can give you a forsure amount of information when it comes to what Self Defence , A Fight and Combat is esp. when you have to take into account of everyones look into what went down and how it went down.

Am I wrong for looking at it that way and finding out for sure people local laws?

Mas Ayoob is a certified court expert in use of force.  He runs LFI (Lethal Force Institute - a shooting school) which most lawyers agree gives more information and facts with regard to the use of lethal force than any law school class.

If you haven't read "In the Gravest Extreme" you should.

What he actually recommends is asking who the police union uses and contact him before you need him, then keep his card with you.

[michael]

Mas Ayoob is a certified court expert in use of force.  He runs LFI (Lethal Force Institute - a shooting school) which most lawyers agree gives more information and facts with regard to the use of lethal force than any law school class.

If you haven't read "In the Gravest Extreme" you should.

What he actually recommends is asking who the police union uses and contact him before you need him, then keep his card with you.
[/quote]

I agree with Grimel. While Mas tends to do things to promote himself and sometimes alters his views on certain firearms or ammunition to suit the whims of the manufacturer he is promoting, his knowledge of self-defense law is greater than most lawyers. He has testified as an expert witness in many high profile murder trials, both for and against police officer, and citizens as well. He has a wealth of knowledge, and his book "In the Gravest Extreme", while dated, offers information that all citizens should have regarding self-defense. When it first came out, there were many who said that it was a textbook on how to get away with murder. I don't see it that way, but the material in it can certainly save you a lot of grief if you ever kill someone in self-defense. The book covers generalities and is not state or city specific, but is an overall broad-brush of self-defense law and how it applies.

The bottom line on self-defense is that it is highly variable on what you can and cannot do, based upon where you live. Whereas in TN or TX you might be given a medal and steak dinner, in California or NY you well could end up in prison. Know your state and local laws regarding self-defense, and spend some time talking to a highly regarded criminal defense attorney in your area that has tried many capital cases.

[Crafty_Dog]

Not directly on point, but very interesting none the less.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=471&page=1

[ballbuster]

hey. Something no one mentioned yet is the Castle doctrine and how it figures into the mix. I know that California doesent have one, but my home state of Kentucky does.
makes for some interesting reading:    http://www.lrc.ky.gov/krs/503-00/055.pdf
Under this statute if any person::
"is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force."

Im not a legal scholar but my interpretation on that is that is if someone attacks you, you may use whatever force neccesary to protect yourself if YOU think that your attacker is tring to seriously hurt you

[medicmatt]

Hey Ballbuster, you're pretty much right on from my experience in Delaware, NY and PA.  However, you have to be real careful about the "amount" of force you use.  I can only claim some expertise in DE but I think it might help.  Delaware has NO self defense law.  the vast majority of the populace would have no idea what the use of force model looks like for this state.  Having worked in the Prison system and with Probation I have had the ability to see it from the side of knowing what my opponent has a history of. But I also know that some of the things I had done to defend myself could easily have gotten me thrown in jail right with the guys I watched over.

The whole point of me rambling is that you can NEVER go above and beyond what you reasonably think the person can or will do to you.  In other words, if someone comes into your house at 2 AM and goes through your crap, and you had the ability to get yourself and family out without conflict but you shoot the guy instead.  You just got hit with manslaughter.  If they pull a gun or knife and threaten you or your family, have at it.  But property does not equal life in most states.  Get out and run.  Very few states will allow you to "stand up for yourself" anymore.  If you can get away, do it.  It sucks to hear but unfortunatley that is the direction this country is going.  Street confrontations as well.   

[Crafty_Dog]

How does it feel to live like that?

[ballbuster]

how does it feel to live like that? if we arent allowed by law to defend ourselves we are forced to live in cowardice. Regardless of the fact that we have the knowledge and ability we cant defend ourselves and stay free men. So can you really even say that we are living at all? if you ask me living in fear isnt living at all and that is what the government is making us do. It really makes me feel like all this training and preparing that we are doing is all for naught.

[Crafty_Dog]

Thank you for getting the ball rolling on this.  I am hoping more people will chime in on this conversation.

[Howling Dog]

Woof, Fortunatly in Ohio, you can still shoot someone who breaks into your home......as long as they are all the way inside.
The running joke is.....If you shoot somone climbing in your window and they fall back outside....drag them inside before the law arrives.

Myself, I have a 90lb pittbull that has the run of the house, and I keep some nasty toys close to the bed.
I sleep pretty well.
                                                             TG

[G M]

Mas Ayoob did a lot to improve the legal aspects of firearms training for both civilians and law enforcement. He moved the dialog away from "Shoot the bad guy, then put a steak knife in his hand" to a realistic understanding of the legal/ethical/moral dynamic of deadly force for many gun owners in this country. He is a prolific writer and nationally recognized police trainer. His books are a must read for those interested in self defense.

[medicmatt]

I can't say that it's the best feeling in the world to know that my state won't back me up if I'm in a confrontation on my own turf but I can see the reasoning.  Unfortunately, there had to be a line drawn for those shoot first and ask questions later personalities out there.  More and more you are starting to see burglars, robbers and generally assailing jerk weeds shot in the back because when someone stands up to them they run but the adrenaline gets the better of the defender.  The fact that everyone sues everyone these days, not withstanding, you can't shoot if there is no threat.  I personnally hate firearms and refuse to have one in my home.  That is not to say that I don't have bladed or impact weapons in the house.  But a firearm, especially a pistol is too much power in a small package and I don't want my children near one.  Firearms are instant courage.  Many, many a person becomes Dirty Harry because they CAN.

Is someone's life the same value as your TV??  That's a big jump and some states are putting the hammer down on what is essentially a kind of vigilanteism.

[medicmatt]

I have to qualify something.  I wrote that last reply at work and sent it quickly.  I will not have a PISTOL in my home.  If I was ever to have any inkling of the need for a firearm in my home I would buy the biggest, nastiest shotgun the law will allow.  That way I have it there but I don't have to worry about one of my children or their friends trying to throw it in a backbacka nd take it to school.  Firearms have value but pistols are WAAAY to easy to conceal.  I stiil don't like any firearms, but to exclude them all is impractical.

[Crafty_Dog]

Medicmatt:

"you can NEVER go above and beyond what you reasonably think the person can or will do to you.  In other words, if someone comes into your house at 2 AM and goes through your crap, and you had the ability to get yourself and family out without conflict but you shoot the guy instead.  You just got hit with manslaughter.  , , ,I can't say that it's the best feeling in the world to know that my state won't back me up if I'm in a confrontation on my own turf but I can see the reasoning.  Unfortunately, there had to be a line drawn for those shoot first and ask questions later personalities out there.  More and more you are starting to see burglars, robbers and generally assailing jerk weeds shot in the back because when someone stands up to them they run but the adrenaline gets the better of the defender.  The fact that everyone sues everyone these days, not withstanding, you can't shoot if there is no threat."

Wow, , , I am in the middle of a busy day, but for the moment I note that our perspectives differ considerably.  May I ask, what experiences, what data, what legal research have you done that has led you to these opinions?


TAC,
CD

[medicmatt]

If my conversation gives you insight into a different way of thinking then I guess it's worth the breaking in of your day.  I'm at work right now, waiting for the next response.  Anyway.

My personal opinions have been cultivated by approximately 8 years of law enforcement until I got sick of it.  I worked in a max security prison for 4 years followed by another 4 years of Probation and Parole.  These years also put me in court on average about 2-3 times a week.  One of the things I noticed in all that is that people are people.  From what you would consider the lowest scumbag on earth to the saintly neighbor who you swear doesn't walk but floats.  They are all the same.  You can find good and bad.  I've met some of the nicest people in the world in prison and some of the worst in a Four Seasons.

In no way am I saying that you should not be able to defend yourself.  But without knowing what the whole story is, should you be able to severely injure or even kill a person who is possibly only after your property.  Especially if there is never a direct threat to you or your family.   The problem starts when a person forgets that it's a living thing in front of them and has no idea that that thing in there hand does a lot more than "put a hole in a target". 

I have the unfortunate joy of putting these people back together again as a Paramedic.  Speaking of which.  Time for another call.  I'll be back.

[medicmatt]

Sorry bout that.  As I was saying, more and more often the people who are "defending themselves" are now doing so with excessive force.  As a Paramedic I have been to many a scene where the person was shot in the back or worse it was someone completely unrelated that was hit by a stray bullet because someone opened fire.  The same goes for unarmed confrontations.  "Defending yourself" does not mean stomping the person in to the dirt or breaking something when putting them down hard and walking away or holding for PD would work.

I hate to use this wording because it sounds insulting when that is not what I'm trying to be.  But, the toughguy mentality of a large portion of the populace is getting ridiculous.  That was one of the reasons that I left law enforcement.  Too many toughguys with that "kill 'em all, let god sort it out" mentality.  Yes, you can and should be able to protect yourself and your own.  Yes, the government should back you when it was a "Him or you" situation.  But, NO, you do not have the right to kill or cause grevious harm to someone just because they imposed on you or your stuff.  There is a line.  There must be.

[Howling Dog]

MedicMatt, Not sure I can agree with you, but I understand what your saying.......maybe paraphrased ..."put them down nicley"
Or with minimal harm to "bad guy"
My idea or thought would be one of personal responsibility. That goes to both good guy and bad guy.....but mostley my thought is towards the bad guy on this.
I work hard for my stuff and to provide for my family, I obey the laws and try to be a productive citizen.
Bad guy breaks into my house try to help himself to my stuff....obviously thats just wrong and he has to be resopnisble for his actions.
If I do nothing and let him take my stuff (just because its "stuff") and get away.....whats to keep him from doing the same to others or worse yet come back and further terrorize my house hold.

Its just my opinon, but if somone violates the law like, burglary and they get messed up for it.......thats their fault.....in other words they have to take responsiblity for their own actions. They never should have crept thru the window, in the first place.

As my kids were growing up, I always told them....."If you don't want to get burned, don't stick your face in the fire"
Key point here is PERSONAL RESPONSIBILITY........too many people these days DO NOT take this.
                                                                          TG

[medicmatt]

I completely agree with the idea of personal responsibility.  Its hard to put in writing how much splitting hairs I am doing because I could probably disagree with myself on half the examples that could be brought up.  My only issue is that force, especially lethal force is a notion that many people have absolutley no idea what it really means until it's too late.  I will alway be on the side of the person who protects their own but I can't help to see the trend of people using this same logic for material possions. 

[Crafty_Dog]

Umm, didn't you also have those material possessions in the home?  That people should allow themselves to be run out of their homes in the middle of the night?

[medicmatt]

Sure, but the question I'm trying to put forward is when does the value of those objects become higher than the life and limb of the other person.  Like I said, if there is a threat to you or your family do what you have to do.  But when the threat is only loss or damage of property?  Is there really a monitary value worth life?  I understand this concept sounds weird but is it really any different than giving your wallet to a mugger?  You can fight and win,lose, die or kill.  Is it worth the $50 and some credit cards that you could shut off anyway?  Nobody wants to walk away but if the threat is eliminated by low or no force, I believe that is what you should do.

[Crafty_Dog]

Unless I am missing something, you went a good bit further than not shooting someone over property.

"In other words, if someone comes into your house at 2 AM and goes through your crap, and you had the ability to get yourself and family out without conflict but you shoot the guy instead.  You just got hit with manslaughter."

1) How does one determine an intruder's intent at 0200?
2) If you are wrong that the intruder's intent is simply limited to property, your family pays the price.   How on earth would you know?  What's the standard?  Probable cause?  Reasonable doubt?  Strict Liability , , , his?    Or is it "One story, end of story"?
3) What do you teach your children if you drag them out of bed at 0200 to flee your home?  What does it tell your wife about you?
4) Concerning "manslaughter", wouldn't that depend on the laws of the jurisdication in question?  In what state(s) were you an LEO?

Concerning property, do we not have the right to defend our property-- ESPECIALLY in our homes?  And if our defense of the property is attacked, do we not have the right to defend ourselves?

[peregrine]

It's all about articulation.
I am not good at articulating my thoughts into words or written, so even more so my attorney will provide my statement.

As far as my understanding of it goes...several facets must be in place for a clean case of self defense(yes people have got away with less)
1.fear of one's life or others
2.escalation of force was reasonable
3.no escape possible(this differs with jurisdiction and castle law...)

[medicmatt]

For not being articulate you put things VERY well peregrine.  If I may I would like to answer the previous questions with your response. 

1.  You can't, just the same as you don't know how many, what age, what mental status or level of armament.  Get out and call PD.  If you or family are threatened at that point, fight.

2.  If you safely avoid the confrontation it won't matter.  If you can't safely avoid it then you are back at fighting anyway.

3.  I'm teaching my kids that property that can be bought again is not worth my or ANYONE's life.  Since I don't know all the answers to #1 and 2 then I will withdraw and deal with it.  If I am challenged then I will fight.  My wife is fine with it thanks.

4.  I can only answer for Delaware which is the state of my legal experience.  As LEO and Criminal Justice education in college.

As for the last part, I think that this is where the conversation came from.  Defense of property and the lack of Self Defense/Castle Law support in the tiny state of DE.

I think my point that might have gotten lost is that I have no issue with defense when challenged if you can ARTICULATE (thanks peregrine) the level of threat.  I just don't think the level of threat is the same for property as it is for the person. 

I have an example that might go to court very soon.  This is a man defending his home but taking that extra step.

Two males forcibly enter a home through the front door.  One male resident is home.  Male resident grabs his gun and runs down stairs.  Resident is challenged coming down the stairs.  Resident shoots one intruder and tries for other.  All this is fine.  The problem begins with the second intruder crapping himself and running away.  At this point in time the threat is gone and everything is over.  The resident proceeds to shoot the intruder in the back as he tried to jump over the hedges in the front yard.  This case when from perfectly fine to manslaughter.  The issue is that the threat was gone. 

[peregrine]

I would like to bring up a very critical point on why i believe in the 2nd A.
The police are not responsible for individuals safety.
This may sound simple on the surface, but there are so many people who believe and have the thought if something bad happens 'the police will come'
Well they likely will, but they may not.

[medicmatt]

Unfortunately very true.  The police are charged with the protection of the state and it's inhabitants.  But at the same time, lovely government brains that have never been physically in trouble ever, decided that police cannot respond hot (full lights and sirens) unless a person's life or limb is in imminent threat.  As a Paramedic I go to everything hot because it is always life threatening until proven otherwise.  The police are not allowed to anymore.  Thanks Delaware.

The police will always come if you call 911.  How long it takes is the question.  In some places you are actually better calling 911, screaming, then hanging up.  That way they send more than one unit.

[Crafty_Dog]

Woof Medic:

Please forgive my relentlessness on this point, but

"The resident proceeds to shoot the intruder in the back as he tried to jump over the hedges in the front yard.  This case when (sic) from perfectly fine to manslaughter."

is quite different from saying that you and your family must run from your home or it will be manslaughter.  Not only is this is outside of the home, but as you correctly note  "The issue is that the threat was gone." 

Yes?

CD

[medicmatt]

Correct.  When the man found the people in his home and they challenged him, that is the threat.  Now if he had come downstairs and the people were not immediately there between him and an exit, or had run away when they heard him, there would be no threat.  The general presence of a person does not automatically create a threat.  (If that were the case then every unsavory person on a subway should be game for a beating just because they are standing close to you).  He could even shout warning to see if they would fight or flee.  (I believe this is what he did).  Not my first choice but still OK.  The problem is that the man went out of his way after the threat was gone to still do harm.  That I believe is the problem.  The presence of a person is not a direct threat that warrants force.  ( I don't want to stick with just lethal force).  If there is a safe exit, I believe that should be the first choice over violence.

I ask this question.  Would it matter if the people were in his home at the time and he shot them in the back?  Or even just kicked the hell out of them from behind?

[Crafty_Dog]

"The general presence of a person does not automatically create a threat."

Now we are getting closer to the essence here.  I submit that someone in my home at 0200 without permission really starts looking like a threat as a general rule--perhaps not an absolute rule-- but a general rule.  If someone has been woken from his sleep, especially if his family is there,  I'm thinking even a no-castle doctrine state is going to tend to be hestitant to go after him. 

A related point: I am aware of states with a duty to retreat until the back is to the wall, but I am not aware of states that require people to flee from their homes in the middle of the night.  I certainly could be wrong about this though; do you have any citations to this effect from your state of Delaware from your days as a LEO?

Turning now to your separate point about shooting in the back:  I submit that though certainly this is one factor amongst the totality of circumstances, that properly presented it is not dispositive.  It could simply have been a moment wherein the BG flinched away. 

I remember a training exercise at one of the Warrior Talk Symposiums in Memphis TE that I participated in as one of the instructors there.   Working from memory, with a simunition gun in holster and suitable safety gear, we told each participant that he was entering his home (actually the gun range) at night.  Upon entering, each participant saw a trainer with a simunition gun in his hand going through the items on a shelf.  The gun was pointed at the ground.  What we were studying is what people would do.  If I remember correctly EVERY person people engaged in conversation with the BG.   When everyone was done, Southnark (a very highly regarded police trainer and undercover LEO) called everyone in.  The simunition guns were all put away.  Then SN stood there as the BG with his index finger pointing at the ground representing his gun and had various people come up one at a time and point their index finger at him.  "Say Bang! if I do something threatening."  he said.  Again and again he "shot" them a split second before or at the same time as each person "shot" him.

The point is this-- the nature of the reactionary gap gives a lot of weight to he who acts first.  So if you come upon someone in your house at 0200, probably you are in the dark and it will be very hard to tell whether he is armed or not-- and if you ask him, you will be running one heck of a risk because he can whirl and shoot at you before you can drop him with certainty.

[G M]

Medicmatt,

You were a cop in Delaware for 4 years? Exactly what "trigger-happy" shooting did you see firsthand? I work in a different part of the US as a cop, and i'm not aware of the wild west atmosphere in Delaware.

[medicmatt]

GM.  Real quick.  I was not a "cop".  Worked for Department of Correction and then with Probation and Parole.  Totalling over 8 years.   I am a Paramedic now with about 3 years in.  Delaware, specifically Wilmington has been on the rise with gun violence in the past few years.  No, we're no Detroit or NYC but its bad enough.  I would't use the term trigger happy because most people in these situations don't think, they just react. 

This brings me to what Crafty Dog was saying.  You are absolutely right about the reaction being slower than action and having done gun fighting drills myself with P+P I have seen this.  However, with your drill of finding the person in your home, back to you, with the gun down.  Why wouldn't you just back out and find a better vantage point for flight or combat?  If you have to move in for protection of family then you're stuck anyway.

Also, fleeing from your home is not such a bad idea when every variable, except possibly knowledge of the layout of the home, are working against you.  I know it sounds crazy, but a skillful retreat especially when others like children are involved is still a better option a lot of the time. 

[Jonobos]

I would like to bring up a very critical point on why i believe in the 2nd A.
The police are not responsible for individuals safety.
This may sound simple on the surface, but there are so many people who believe and have the thought if something bad happens 'the police will come'
Well they likely will, but they may not.

I have been thinking about this a lot lately, and I have to say that I agree. I refuse to leave the safety of the ones I love in the hands of someone else. Especially when that someone else might be miles away. By the time the police arrive I could be dead. My family could be dead. I believe Crafty says it best "Protect yourself at all times" and "Only you are responsible for your safety." Maybe thats not exactly it, but I think he says something to that affect at the beginning of every gathering. There are not enough police to protect everyone, and would we really want that many anyway? I wouldn't.

Also, fleeing from your home is not such a bad idea when every variable, except possibly knowledge of the layout of the home, are working against you.  I know it sounds crazy, but a skillful retreat especially when others like children are involved is still a better option a lot of the time.

I really don't see how its possible to wake up the 3 other people I live with and sneak out of the house without ending up in a confrontation with the intruder. There are three floors and we are on different levels. Chances are good that one of us will run smack into the intruder before the others even realize he is there. I could flee, try and call for help, and leave the others on their own. That doesn't sit well. What about the months of the year that the temperatures are below freezing outside? Is it really a good idea to go charging out the front door in my boxers? Just some food for thought. Not all of us live in sunny California where you can hang out in shorts outside all year 

[Crafty_Dog]

While I await Medicmatt's response to Jonobos post and its quite pertinent points, as I am on my way out the door for the day I toss in this little piece.


http://news.yahoo.com/s/ap/20080502/.../student_death

By RYAN J. FOLEY, Associated Press WriterThu May 1, 11:50 PM ET

A college student apparently called 911 from her cell phone shortly before she was killed but a dispatcher hung up, failed to call back and never sent police to investigate, authorities said Thursday.
Madison Police Chief Noble Wray said it was too early to know whether a better response could have prevented the April 2 slaying of Wisconsin-Madison student Brittany Zimmermann or helped police capture her killer.
Authorities refused to release the content of the phone call, but Wray said it should have been enough for the Dane County 911 Center to take it seriously.
"It would be accurate to state that there is evidence contained in the call, which should have resulted in a Madison police officer being dispatched," Wray said at a news conference. "The 911 center did not call back to the telephone number, Madison police were not notified and no officer was sent."
Zimmermann, 21, was found slain in her apartment in an apparently random crime. Police believe someone broke into her apartment before killing her. They have not identified a suspect but have ruled out her fiance, who found her body in the apartment they shared.
Dane County Public Safety Communications Director Joseph Norwick said the dispatcher who received the call from Zimmermann's cell phone inquired several times to determine whether an emergency existed. The dispatcher hung up after receiving no answer and then answered another 911 call that was waiting, he said.
The dispatcher failed to call the number back as required under the department's policy, Norwick said.
Norwick said he was investigating the incident and reviewing whether policies should be changed and employees should be disciplined. But he also said, "I don't think there's anything to apologize for at this time."

[Crafty_Dog]

And while we await MM's specific citation of DE law, here is this on Texas law:

'Castle doctrine' likely will apply in fatal shooting


Web Posted: 04/29/2008 11:14 PM CDT


Robert Crowe
Express-News
After his home was burglarized earlier this week, Thomas Thames decided to arm himself in case the intruder returned, police say.
The following night, he heard another noise at his home in the 5800 block of East Midcrown, so Thames, 39, walked downstairs. It was about 2:30 a.m. Tuesday when he once again saw a young man in his kitchen. The back door was open.
This time, Thames fired a gun at the man, who ran into the backyard, where Thames shot at him again, police said.
Ronnie Scarborough, 18, was pronounced dead at the scene.
San Antonio police spokesman Sgt. Gabe Trevino said the resident had pulled the man into his house and waited for police to arrive.
Police said the man killed at Thames’ Northeast Side home Tuesday matched the description of a burglary suspect the resident said he chased from the home the night before.
Police said Tuesday that Thames likely won’t be charged with a crime because Texas law gives homeowners latitude in protecting their property and themselves.
“A property owner, by Texas law, has the right to prevent the consequences of a burglary by utilizing deadly force if necessary,” Trevino said.
For many years, Texas law has permitted residents to use deadly force to protect themselves and their personal property. Last year, the Legislature broadened the law to include a “castle doctrine,” allowing a person to use deadly force in self-defense against an intruder without having to retreat into his home.
Many other states have adopted similar doctrines — sometimes called “Make My Day” laws — said Jonathan Turley, law professor at George Washington University.
“The danger of empowering people to use deadly force is that they are not trained to recognize friend or foe in highly dangerous situations,” he said. “Oftentimes, a stranger in a house turns out to be a drunken neighbor or a relative.”
In San Antonio last year, a Northwest Side homeowner fatally shot an intoxicated college student who wandered into his home — in the same neighborhood where the student’s sister lived.
Raymond Lemes found 19-year-old Tracy Glass inside his house about 2:45 a.m. one Saturday last August. Believing Glass was an intruder, Lemes chased the young man outside, where he shot him in the neck, arm and chest.
Lemes wasn’t charged in the case.
Texas’ castle doctrine garnered national attention last year when a 61-year-old Pasadena man shot and killed two men who had broken into a neighbor’s home. The incident was recorded in a 911 phone call that the shooter, Joe Horn, made to police.
Horn was inside his house when he reported seeing two men break into a neighbor’s home. According to a recording of the emergency call, Horn told the dispatcher he intended to go outside and kill the men. The dispatcher told him that it wasn’t worth it to kill someone over property.
Still, Horn went outside and fatally shot the men, Pasadena police said. He told police they lunged at him on his property. Harris County prosecutors are scheduled to present the case to a grand jury next month.

Staff Writer Michelle Mondo contributed to this report.

[medicmatt]

I must admit, I stand corrected.  I was incorrect in my information.  Having spoken to an attorney of the Prosecutor's Office of my state.  I was directed to word of law for Delaware.  The information put forward in my prior training and experience it seems was something of a myth.  Self defense does in fact exist in Delaware as does the Delaware version of the "Castle Law".  Here is the code.  My only guess is that in the courts of this lovely state Self Defense as an affirmative defense to violence is frowned upon and therefore if you do not do your homework, which I did not, you will not get the true extent of your rights.

I decided that since the post was going pretty far and getting iinteresting, I needed to make sure of the validity of my side.  I was incorrect and apologize for being so.  It is interesting to note that everything that I had been taught and was trying to put forward seems to be mixed in to the law but I think reading the code in its entirety explains things quite well.
MM

§ 464. Justification -- Use of force in self-protection.

(a) The use of force upon or toward another person is justifiable when the defendant believes that such force is immediately necessary for the purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion.

(b) Except as otherwise provided in subsections (d) and (e) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as the person believes them to be when the force is used, without retreating, surrendering possession, doing any other act which the person has no legal duty to do or abstaining from any lawful action.

(c) The use of deadly force is justifiable under this section if the defendant believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.

(d) The use of force is not justifiable under this section to resist an arrest which the defendant knows or should know is being made by a peace officer, whether or not the arrest is lawful.

(e) The use of deadly force is not justifiable under this section if:

(1) The defendant, with the purpose of causing death or serious physical injury, provoked the use of force against the defendant in the same encounter; or

(2) The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that:

a. The defendant is not obliged to retreat in or from the defendant's dwelling; and

b. The defendant is not obliged to retreat in or from the defendant's place of work, unless the defendant was the initial aggressor; and

c. A public officer justified in using force in the performance of the officer's duties, or a person justified in using force in assisting an officer or a person justified in using force in making an arrest or preventing an escape, need not desist from efforts to perform the duty or make the arrest or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed. (11 Del. C. 1953, § 464; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 5; 70 Del. Laws, c. 186, § 1.)

§ 465. Justification -- Use of force for the protection of other persons.

(a) The use of force upon or toward the person of another is justifiable to protect a third person when:

(1) The defendant would have been justified under § 464 of this title in using such force to protect the defendant against the injury the defendant believes to be threatened to the person whom the defendant seeks to protect; and

(2) Under the circumstances as the defendant believes them to be, the person whom the defendant seeks to protect would have been justified in using such protective force; and

(3) The defendant believes that intervention is necessary for the protection of the other person.

(b) Although the defendant would have been obliged under § 464 of this title to retreat, to surrender the possession of a thing or to comply with a demand before using force in self-protection, there is no obligation to do so before using force for the protection of another person, unless the defendant knows that the defendant can thereby secure the complete safety of the other person.

(c) When the person whom the defendant seeks to protect would have been obliged under § 464 of this title to retreat, to surrender the possession of a thing or to comply with a demand if the person knew that the person could obtain complete safety by so doing, the defendant is obliged to try to cause the person to do so before using force in the person's protection if the actor knows that complete safety can be secured in that way.

(d) Neither the defendant nor the person whom the defendant seeks to protect is obliged to retreat when in the other's dwelling or place of work to any greater extent than in their own. (11 Del. C. 1953, § 465; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.)

§ 466. Justification -- Use of force for the protection of property.

(a) The use of force upon or toward the person of another is justifiable when the defendant believes that such force is immediately necessary:

(1) To prevent the commission of criminal trespass or burglary in a building or upon real property in the defendant's possession or in the possession of another person for whose protection the defendant acts; or

(2) To prevent entry upon real property in the defendant's possession or in the possession of another person for whose protection the defendant acts; or

(3) To prevent theft, criminal mischief or any trespassory taking of tangible, movable property in the defendant's possession or in the possession of another person for whose protection the defendant acts.

(b) The defendant may in the circumstances named in subsection (a) of this section use such force as the defendant believes is necessary to protect the threatened property, provided that the defendant first requests the person against whom force is used to desist from interference with the property, unless the defendant believes that:

(1) Such a request would be useless; or

(2) It would be dangerous to the defendant or another person to make the request; or

(3) Substantial harm would be done to the physical condition of the property which is sought to be protected before the request could effectively be made.

(c) The use of deadly force for the protection of property is justifiable only if the defendant believes that:

(1) The person against whom the force is used is attempting to dispossess the defendant of the defendant's dwelling otherwise than under a claim of right to its possession; or

(2) The person against whom the deadly force is used is attempting to commit arson, burglary, robbery or felonious theft or property destruction and either:

a. Had employed or threatened deadly force against or in the presence of the defendant; or

b. Under the circumstances existing at the time, the defendant believed the use of force other than deadly force would expose the defendant, or another person in the defendant's presence, to the reasonable likelihood of serious physical injury.

(d) Where a person has used force for the protection of property and has not been convicted for any crime or offense connected with that use of force, such person shall not be liable for damages or be otherwise civilly liable to the one against whom such force was used. (11 Del. C. 1953, § 466; 58 Del. Laws, c. 497, § 1; 62 Del. Laws, c. 266, §§ 1, 2; 70 Del. Laws, c. 186, § 1.)

[Crafty_Dog]

Woof MedicMatt:

My apologies for the delay in my reply.  Thank you for your commitment to search for Truth and to share the results with us here.

In related vein, I found this on the GetofftheX forum:

TAC
CD
========================

Find out if your states have an office of legislative research.

Its a great tool to use.

This is a good summary of the state of laws in Connecticut on this subject.

2007-R-0052

CASTLE DOCTRINE AND SELF-DEFENSE
January 17, 2007

By: Christopher Reinhart, Senior Attorney

You asked about the “castle doctrine,” how it acquired its name, how many states have adopted bills on it, and any information about its effect in states that have adopted it.

SUMMARY

Generally, the “castle doctrine” provides that someone attacked in his home can use reasonable force, which can include deadly force, to protect his or another's life without any duty to retreat from the attacker. It is defined differently in different states. The name appears to have its origin in the English common law rules protecting a person's home and the phrase “one's home is one's castle. ”

In recent years, a number of states have adopted or considered bills referred to as “castle doctrine” bills. These bills expand the circumstances where a person can use self-defense without retreating and contain other provisions, such as immunity for someone who legally uses force in self-defense. A Washington Post article states that the Florida bill was given the name the “castle doctrine” by Florida lobbyist Marion P. Hammer, a former National Rifle Association president (“Florida Gun Law to Expand Leeway for Self-Defense,” Washington Post, April 26, 2005). These bills have also been called “stand your ground” bills.

We found 15 states that adopted a “castle doctrine” bill in the last two years. These states are: Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Oklahoma, South Carolina, and South Dakota. A number of other states considered bills on this topic. In New Hampshire, the legislature passed a “castle doctrine” bill but the governor vetoed it.

These “castle doctrine” bills contain a number of different provisions and the states vary in which provisions they adopted. Some of these expanded the circumstances where force could be used in self-defense without a duty to retreat, some adopted provisions on criminal or civil immunity for legally using force in self-defense, and some contained all of these provisions.

We could not find any studies on the impact of these laws. A June 11, 2006 Orlando Sentinel article stated that it was too early to see the impact of Florida's new law, which took effect October 1, 2005, and there were no statewide statistics on the number of self-defense claims before or after that date. The newspaper found 13 people who used self-defense in central Florida over five months (resulting in six deaths and four people wounded). In the investigation of the 13 people who used self-defense, three were charged with a crime, five cleared, and the others were still under review. The newspaper stated that police and prosecutors handled investigations of these cases in a range of ways. A copy of this article is attached (“Cases Involving the New Deadly Force Law are Handled in a Broad Range of Ways,” Orlando Sentinel, June 11, 2006).

The sections below describe provisions in the “castle doctrine” bills and Connecticut's laws on self-defense.

“CASTLE DOCTRINE” BILLS

We found 15 states that adopted a “castle doctrine” bill in the last two years. Some of these expanded the circumstances where force could be used in self-defense without a duty to retreat, some adopted provisions on criminal or civil immunity for legally using force in self-defense, and some contained all of these provisions. In general, the bills contained at least one of the following provisions.

1. They remove the duty to retreat from an aggressor using force or deadly force under certain circumstances. The states vary in how broadly this applies. For example, Alaska expands the types of premises where a person does not have a duty to retreat when using force in defense of self to include any place the person resides, a place where he is a guest, and his workplace. The Alaska law also applies to protecting a child or member of the person's household, regardless of location.

2. Kansas removes the duty to retreat from its use of force statutes and adds a general statement that a person not engaged in illegal activity who is attacked in a place where he has a right to be has no duty to retreat and has the right to stand his ground and meet force with force.

3. Some states add a legal presumption about when a person is justified in using force against intruders. For example, Florida added a presumption that a person using force had a reasonable fear of death or serious injury to himself or another if (a) the person against whom he used force was illegally and forcefully entering a dwelling or occupied vehicle, was in the process of doing so, or removed or was attempting to remove a person against his will and (b) the person using force knew or had reason to believe this was occurring. These presumptions, which vary by state, have exceptions and do not apply under specified circumstances, such as when (a) the person force is used against had a right to be in the dwelling or was a lawful resident, (b) the person using force was engaged in illegal activity, or (c) the person force is used against is a law enforcement officer performing his duties who identified himself or the person using force knew or should have known the person was an officer.

4. Some states, such as Florida, include a presumption that a person who illegally or forcefully enters or attempts to enter a dwelling or occupied vehicle is presumed to be doing so with intent to commit an illegal act involving force or violence.

5. Many of the bills provide immunity from criminal prosecution for a person who legally uses force or deadly force. This can apply to arrest, detention in custody, charging, and prosecuting. Some also specify that law enforcement is authorized to use standard procedures to investigate but cannot arrest the person unless there is probable cause that the use of force was unlawful.

6. Many also provide immunity from civil actions for a person who is justified in using force or deadly physical force. They require a court to award reasonable attorney's fees, costs, compensation for lost income, and expenses if the court finds that the person acted lawfully and is immune from prosecution.

CONNECTICUT LAW

Under Connecticut law, a person may use physical force (self defense): to protect himself or a third person, his home or office, or his property; to make an arrest or prevent an escape; or to perform certain duties (for example, a corrections officer may use force to maintain order and discipline, a teacher to protect a minor, and a parent to discipline a child). A person cannot use physical force to resist arrest by a reasonably identifiable peace officer, whether the arrest is legal or not (CGS § 53a-23).

Self defense or justification is a defense in any prosecution (CGS § 53a-16). The person claiming justification has the initial burden of producing sufficient evidence to assert self-defense. When raised as a defense at a trial, the state has the burden of disproving self defense beyond a reasonable doubt (CGS § 53a-12).

Physical Force in Defense of Person

A person is justified in using reasonable physical force on another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force. The defender may use the degree of force he reasonably believes is necessary to defend himself or a third person. But deadly physical force cannot be used unless the actor reasonably believes that the attacker is using or about to use deadly physical force or inflicting or about to inflict great bodily harm.

Additionally, a person is not justified in using deadly physical force if he knows he can avoid doing so with complete safety by:

1. retreating, except from his home or office in cases where he was not the initial aggressor or except in cases where he a peace officer, special policeman, or a private individual assisting a peace officer or special policeman at the officer's directions regarding an arrest or preventing an escape;

2. surrendering possession to property the aggressor claims to own; or

3. obeying a demand that he not take an action he is not otherwise required to take.

Lastly, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the person to use physical force, (2) use of such force was the product of a combat by agreement not specifically authorized by law, or (3) he is the initial aggressor (unless he withdraws from the encounter, effectively communicates this intent to the other person, and the other person continues to or threatens to use physical force) (CGS § 53a-19).

Physical Force in Defense of Premises

A person who possesses or controls property or has a license or privilege to be in or on it is justified in using reasonable physical force when and to the extent he reasonably believes it to be necessary to stop another from trespassing or attempting to trespass in or upon it. The owner can use deadly physical force only (1) to defend a person as described above, (2) when he reasonably believes it is necessary to prevent the trespasser from attempting to commit arson or any violent crime, or (3) to the extent he reasonably believes it is necessary to stop someone from forcibly entering his home or workplace (and for the sole purpose of stopping the intruder) (CGS § 53a-20).

Physical Force in Defense of Property

A person is justified in using reasonable physical force when and to the extent he reasonably believes it necessary to (1) prevent attempted larceny or criminal mischief involving property or (2) regain property that he reasonably believes was stolen shortly before.

When defending property, deadly force may be used only when it is necessary to defend a person from the use or imminent use of deadly physical force or infliction or imminent infliction of great bodily harm as described above (CGS § 53a-21).

Supreme Court Decision on Self Defense

In 1984, the Connecticut Supreme Court articulated the test for determining the degree of force warranted in a given case. Whether or not a person was justified in using force to protect his person or property is a question of fact that focuses on what the person asserting the defense reasonably believed under the circumstances (State v. DeJesus, 194 Conn. 376, 389 (1984)). The test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the defendant's perspective; this is the subjective component. The jury must then decide whether the defendant's belief was reasonable (DeJesus at 389 n. 13).

, , , ,

(separate post)

, , , ,

http://www.tennesseefirearms.com/download/memosb0011.pdf

This can, and should be, amended next session with the corrections TFA Executive Director, John Harris, outlines above.

[medicmatt]

Sorry,  Been really busy.  Lots of wrecks recently.

Timing seems to be of import right now as it seems that the State of Delaware is trying to squash a new bill that would contain a "castle law".  I'm trying to get more specifics, but I don't think I'm supposed to know what I already know about it.  It's amazing what a lawyer talks about over lunch.  It seems the State gov't is looking with the same reluctance that I would.  A litttle worried about some "Dirty Harry" type incidents.  Problem is, if they read their own laws, its already too late.  Nothing about changing the laws on the books just trying to stop "castle law".  Maybe its just for the appearance.  I dunno.

[Crafty_Dog]

Uhhh, , , , if it is a bill, its not a secret    As a matter of fact you would be doing your civic duty to help your fellow citizens keep track of the poli-ticks '(many bloodsuckers) 

[medicmatt]

I think that was the issue of why I'm not supposed to know.  It's either not fully written or its pork that they are trying to fill in something else with.  Either way it sucks.  I don't think it will go anywhere anyway.  The law is pretty specific as it is. I'm just thinking they don't want the title "castle law" on the books.  Then people might find it.

Got a quote for you about lawyers.  Yes this is a sore spot for me.  Enough time in court, and I was on the good side.

"How's a lawyer like a slinky??"
"They're both really not good for anything but their fun to watch as you push them down the stairs."

Well I liked it.

[Crafty_Dog]

Guy asks his wife for some anal sex.  She turns him down. 

"Why not?"

"You wouldn't want to have a lawyer, would you?"

 

[foxmarten]

This link to the Loyola Law Review gives a nice 23 page overview of California's law and case law on "justifiable murder", including the presumption of reasonable fear if defending one's residence from intruders...

http://209.85.173.104/search?q=cache:EYsXDKE2pkYJ:llr.lls.edu/volumes/v36-issue4/documents/9selfdefense.pdf+california+self-defense+law&hl=en&ct=clnk&cd=2&gl=us

California Penal Code section 197 states, “Homicide is . . .
justifiable when committed by any person . . . [who is] resisting any
attempt to murder any person . . . .” This definition does not fully
reflect the complexities involved in deciding when self-defense is a
legally permissible justification for murder in California.
Self-defense consists of two elements: (1) an “honest” belief in
the need to defend; and (2) a “reasonable” belief in the need to
defend. The defendant must subjectively or actually believe in the
need to defend against imminent harm. In addition, the defendant’s
belief must be objectively reasonable. If a defendant had an honest but unreasonable belief in the need
to defend against imminent harm, the result is imperfect self-defense.
In cases of imperfect self-defense, a defendant can be convicted of
manslaughter, but not murder. Thus, a defendant will only be
completely exonerated if there is both a subjective and objective
belief in the need to defend. Recent developments in the law of self-defense focus on several
areas...

CAL Penal Code197. 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. 198. A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone. 198.5. Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. As used in this section, great bodily injury means a significant or substantial physical injury. 199. The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged.

[Crafty_Dog]

Thank you Foxmarten!