Author Topic: Self-Defense and other law related to martial arts  (Read 174890 times)

Crafty_Dog

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Common Law Principles
« Reply #50 on: May 23, 2008, 11:45:58 AM »
Pasting Scott's post from the Kerambit thread here:
==========

Some reading:

Self-defense

Common law principles

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

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

 The “aggressor” issue

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

 “Reasonable belief” at common law

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

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

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

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

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

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

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

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

 “Self-protection” and the Model Penal Code

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

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

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

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

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

 Necessity

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

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

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

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

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

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

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

 Excuse

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

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

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

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

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

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

 Duress

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

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

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

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

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

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

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

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

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

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

Crafty_Dog

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Re: Self-Defense Law
« Reply #51 on: June 03, 2008, 04:40:01 PM »
Man with gun is shot and killed instead
http://www.dailynews.com/ci_9453065?source=rss

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

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

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

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

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

Anyone with information about this crime is asked to call Van Nuys Homicide Detectives M. Martinez or L. Lowande at (818) 374-0040. On off

Crafty_Dog

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Self-Defense Law in the UK
« Reply #52 on: July 13, 2008, 04:49:02 PM »
The mind boggles at the situation in the UK:

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

 :cry: :cry: :x

Crafty_Dog

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Re: Self-Defense Law
« Reply #53 on: July 16, 2008, 05:05:23 PM »
Well, pigs fly!!!  :lol:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Have Your Say: Should have-a-go heroes get protection?
Story from Telegraph News:
http://www.telegraph.co.uk/news/news...hemselves.html

Scotty Dog

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Re: Self-Defense Law
« Reply #54 on: July 17, 2008, 03:20:42 AM »
I'm glad to see greater clarification of the UK law, but I'm fed up seeing Tony Martins name being used as a figure head of the right to Self Defence in the UK.

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

Bill Hicks

Crafty_Dog

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Hawaii Knife Law
« Reply #55 on: July 22, 2008, 10:10:02 PM »
Knife carry law summary

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

§134-51 Deadly weapons; prohibitions; penalty.

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

§134-52 Switchblade knives; prohibitions; penalty.

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

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

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

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

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

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

Crafty_Dog

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Re: Self-Defense Law
« Reply #56 on: September 02, 2008, 05:33:07 PM »
Note that this is two years old:
==========================


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

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

The New York Times

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

Multimedia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Page 2 of 2)



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

Skip to next paragraph

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

Multimedia

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

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

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

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

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

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

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

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

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

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

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

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

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

"I have a right," Mr. Allen said, "to keep my house safe."

Crafty_Dog

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Re: Self-Defense Law
« Reply #57 on: September 28, 2008, 05:47:24 PM »
A rare piece of good news for our British friends:

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

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

Crafty_Dog

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UK Self-Defense Law
« Reply #58 on: October 09, 2008, 11:03:41 PM »
Brit Gardener Ordered To Remove Barbed Wire to Protect Thieves

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

Gardener ordered to take down barbed wire to protect thieves

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

Last Updated: 2:53PM BST 09 Oct 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://www.dailymail.co.uk/news/arti...g-scythe.html#

Crafty_Dog

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More citizens enforcing the law themselves
« Reply #59 on: December 01, 2008, 08:37:51 AM »
http://www.commercialappeal.com/news/2008/dec/01/standing-their-ground/

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

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

"Give me all your money!''

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But some feel some citizens are going too far.

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

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

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

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

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

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

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

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

"They don't know what the taste of metal in your mouth is,'' he said.

Crafty_Dog

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Re: Self-Defense Law
« Reply #60 on: December 05, 2008, 10:15:42 AM »
I strongly support self-defense laws and this article does not.  I post it because it reports on an important subject.
========
--------------------------------------------------------------------------------

AP Enterprise: Deaths loom over self-defense laws

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

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

Police say the robber in the second case was armed, while the ma