What is the Usual Charge if Self-Defense by Lethal Means is Not Upheld by Authorities


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gvf
July 19, 2014, 03:44 PM
I.E., If I claimed I killed a man by reason of Self-Defense and the Police Investigation find my claim is not justified: what will I usually be Charged with if there is any Charge that could be said to be "Usual".

I should give an example: I almost have a horrible car accident and by luck the accident is avoided but I'm very shaky and jumpy. I resume my drive to a friend's party. It's after dark. I park on the only spot available near his house,
5 min walk. While walking I see another man approaching from the opposite direction. He's walking faster than usual. As he nears he puts his hand in his pocket and begins to draw something out. I think I see the butt of a gun and draw and shoot him. He begins to stagger and fall, but convinced he still may attack I shoot 5 more times, hitting him each time in the torso. He's dead.

Police arrive and find a cell-phone, not a gun, in the pocket he reached into. It's large and square and looks nothing like a gun. Neighbors who witnessed this are the ones who called 911. I didn't. They called to report a murder. They saw nothing the man was doing except walking by. They said they often saw him walking. His family says he walked partly for exercise and a bit uptempo but not fast.Neighbors agree it wasn't a fast walk.

Autopsy shows my first shot went into a major artery and he was incapable of continuing the attack. When asked about the first shot I agree he stopped and began to fall and his bare hand came out of his pocket.

So, the Police find the killing not justified by SD. Or even close to it.

What am I charged with? Murder, Criminally Negligent Homicide? I think the latter though is death by negligence that was not intended but happened out of one's negligent actions. This death I intended or at least intended to stop him even if it meant he died in the process. I therefore intended to stop him by any means possible including killing him.

What do you think would be the usual Charge? If there is one.

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gunlaw
July 19, 2014, 04:00 PM
Most likley 2nd degree murder

69248
July 19, 2014, 04:02 PM
In Michigan, you'd be charged with Open Murder and it would be left up to the jury to determine which of the lesser included offenses you're guilty of (or if you're lucky..not guilty of). Here, and under those facts, the self defense standard is basically did you have an honest belief that you're life was in danger, and was that belief a reasonable one in the juries opinion.

BobWright
July 19, 2014, 04:36 PM
My guess is that the charge would be manslaughther.

Bob Wright

Kleanbore
July 19, 2014, 05:01 PM
Pure speculation.

But I cannot imagine giving the benefit of the doubt to anyone who said that he had seen a man who was walking on a sidewalk at night reach into his pocket, said he "thought he saw the butt of a gun, and resorted to deadly force.

What could have possessed the defendant to so react? The fact that the victim was coming toward the defendant? Because the defendant said that he thought the victim was "walking faster than usual", whatever that means?

People pass each other on foot all the time.

I think the defendant's goose would be cooked.

Based on the scenario described, I would expect charges for whatever the jurisdiction at hand would consider the most serious kind of crime short of premeditated murder or some kinds of crimes with special circumstances. Lay opinion.

Worried about a shadowy figure? Cross the street.

lemaymiami
July 19, 2014, 06:12 PM
I'm not a lawyer... but when I was a cop I was on both sides of shooting incidents (one when I was the shooter - quite a few that involved the general public -and one or two that involved my own men...).

Basically the facts of the case or circumstances involved determined the level of charging in a homicide. If, and this is a big IF, the facts supported the shooter (justified or excusable homicide)... no one was charged -but all of that comes after the fact. The real key to whether an individual is charged for a killing is that folks who weren't there at the time (investigating team, then the state's attorney...) will review all the known evidence and make a charging decision.

The lowest level of charge in a killing is manslaughter -doing something dangerous with wilful disregard for the consequences and as a result there's a death... Examples of this can be as simple diriving drunk and killing someone or losing your temper and firing shots in public resulting in a death - whether you intended it or not... or were aiming at the individual who was killed... This is a gross simplification but this is the way we were taught years ago at the police academy that I attended... You don't need a firearm or any weapon to be charged with manslaughter just a clearly negligent act and a death resulting...

The next level of charging is usually second degree homicide where someone was killed but the perpetrator didn't intend to kill or didn't plan the act...

The final level is first degree homicide where there's clear evidence of cold blooded pre-planned murder (and if you kill someone while committing another felony it's still first degree whether you planned the killing or not...).

I'm sure there are plenty of lawyers around who will correct me here or there but this is the understanding I operated under on the street for many years. I can tell you from personal experience that waiting to find out whether your shooting is "justified" or not isn't much fun at all... I wouldn't recommend it to anyone.

RustyShackelford
July 19, 2014, 08:10 PM
I'm not sure how a minor TA(traffic accident) would factor into your using lethal force on a possible aggressor(robber-mugger). :uhoh:
If you draw & fire at anyone, you'd need to explain your acts or justify why you decided to use the firearm. Shooting 5 more times after the subject was down could be construed as malice or be used to show your violent/aggressive nature. See OK vs England.
England was a OK City drug store owner who was convicted for shooting a young robber multiple times. :uhoh:

If you just shot the passer-by once & then contacted LE, you might get a manslaughter charge but by shooting the victim again or shooting multiple times, that could make a case for murder-one or "first degree homicide". You(the gun owner) knew the victim was not a mugger/thug, you repeatedly shot him, then you didn't contact 911 or render any aid.

I'm not a JD or a prosecutor so I can't say exactly what charges would occur, but from what was posted, I think murder charges would stick.

Frank Ettin
July 19, 2014, 09:38 PM
I.E., If I claimed I killed a man by reason of Self-Defense and the Police Investigation find my claim is not justified: what will I usually be Charged with if there is any Charge that could be said to be "Usual"....

Let's start by having a look at the various types of "homicide."

"Homicide" is simply the killing of one person by another. So let's examine how the law looks at "homicide."


"Homicide" is not a crime. Homicide might be a crime, or it might not be a crime.


A homicide can be --


Accidental;


Negligent;


The result of reckless (or willful, wanton and reckless) conduct;


Intentional without malice (evil intent);


Intentional with malice; and


Intentional, premeditated and with malice.



An accidental homicide basically would be a death occurring as the unintended result of actions of an actor, even though the actor acted as a reasonable and prudent person in like circumstances. The actor incurs no criminal or civil liability in the case of a truly accidental homicide.


A negligent homicide would be a death occurring as the unintended result of the actions of an actor failing to use the degree of care expected of a reasonable and prudent person in like circumstances. And the actor incurs civil, but not criminal, liability in the case of a negligent homicide.


Homicides (3) - (6) are crimes: involuntary manslaughter, voluntary manslaughter, murder, and first degree murder, respectively.


The various types of homicide are defined in terms of the state of mind/intent/conduct of the actor.


If you point a gun at someone, the gun discharges and the person dies, your conduct gives rise to at least an articulable suspicion that a crime anywhere from involuntary manslaughter (pointing a gun at someone is at least reckless) to murder in the first degree has been committed. If you are claiming that you acted in self defense, you would be at least admitting the elements of voluntary manslaughter, i. e., you intentionally shot the guy.


Self defense, simple negligence or accident is a defense to a criminal charge of involuntary manslaughter, voluntary manslaughter, murder, or first degree murder. Self defense or accident is a defense against a civil claim. It will be up to you to make the case for your defense, e. g., it was an accident, it was mere negligence, it was justified.


Now let's look at the basic legal reality of the use of force in self defense.


Our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.


However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.


Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.


Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.


The amount of force an actor my justifiably use in self defense will depend on the level of the threat.


Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --


Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;


Opportunity, i. e., the assailant was capable of immediately deploying such force; and


put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.


"Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."


"Opportunity" could be established by showing proximity, lack of barriers or the like.


"Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.


And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.


If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.


Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.


If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.


Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.


Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?


In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.


It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.


It could also be another matter if you left the safety of your house to confront someone on your property.


Good, general overviews of the topic can be found at UseofForce.us (http://www.useofforce.us/) and in this booklet (http://www.armedcitizensnetwork.org/images/stories/Hayes-SDLaw.pdf) by Marty Hayes at the Armed Citizens' Legal Defense Network.


Since the maintenance man here apparently intentionally shot three people, two of whom died, his actions satisfy the elements of the crimes of manslaughter (at least) and aggravated assault (although different jurisdictions might give those crimes different names.


If he now claims that he is free of criminal responsibility because his use of lethal force was justified, it will be up to him to present evidence establishing, prima facie, his legal justification.


Maybe the evidence, once reviewed, will be sufficient to exonerate him at an early stage. Or maybe it will be up to a jury to decide.


But anyone who uses violence against another human, even if he claims self defense, will need to go through the process until it can be decided that the use of force was legally justified.


Often a failure to establish justification will result in a conviction for voluntary manslaughter.


Emotional stress will often negate malice and thus takes murder off the table. Emotional stress could come from provocation insufficient to reasonably justify a response with lethal force, a genuine but unreasonable fear, surprise (finding your spouse in flagrante delicto with someone), etc.


Sometimes something like a delay or re-engagement could be found to add the element of malice necessary for a conviction of murder, e. g., such as in the Ersland case (http://www.cbsnews.com/news/oklahoma-city-pharmacist-jerome-ersland-found-guilty-of-murder-in-killing-of-suspect/).


Whether or not a defendant acted with malice is generally a jury question. So in most cases, however, the charge will be murder. The jury will be then usually have the option to convict of voluntary manslaughter as a less included offense if it finds criminal culpability but no malice.

gvf
July 19, 2014, 09:39 PM
My guess is that the charge would be manslaughther.

Bob Wright
But isn't Manslaughter an intention to harm but not kill? Like a fight, you intend to hit the guy but he falls backward and cracks his skull on the sidewalk and dies. You only intended to hit him.

In SD your intention is stop by any means including killing. It's intentional.
And if no SD is found, Manslaughter cannot be the Charge.

Right?

Right?

gvf
July 19, 2014, 09:47 PM
Let's start by having a look at the various types of "homicide."

"Homicide" is simply the killing of one person by another. So let's examine how the law looks at "homicide."


"Homicide" is not a crime. Homicide might be a crime, or it might not be a crime.


A homicide can be --


Accidental;


Negligent;


The result of reckless (or willful, wanton and reckless) conduct;


Intentional without malice (evil intent);


Intentional with malice; and


Intentional, premeditated and with malice.



An accidental homicide basically would be a death occurring as the unintended result of actions of an actor, even though the actor acted as a reasonable and prudent person in like circumstances. The actor incurs no criminal or civil liability in the case of a truly accidental homicide.


A negligent homicide would be a death occurring as the unintended result of the actions of an actor failing to use the degree of care expected of a reasonable and prudent person in like circumstances. And the actor incurs civil, but not criminal, liability in the case of a negligent homicide.


Homicides (3) - (6) are crimes: involuntary manslaughter, voluntary manslaughter, murder, and first degree murder, respectively.


The various types of homicide are defined in terms of the state of mind/intent/conduct of the actor.


If you point a gun at someone, the gun discharges and the person dies, your conduct gives rise to at least an articulable suspicion that a crime anywhere from involuntary manslaughter (pointing a gun at someone is at least reckless) to murder in the first degree has been committed. If you are claiming that you acted in self defense, you would be at least admitting the elements of voluntary manslaughter, i. e., you intentionally shot the guy.


Self defense, simple negligence or accident is a defense to a criminal charge of involuntary manslaughter, voluntary manslaughter, murder, or first degree murder. Self defense or accident is a defense against a civil claim. It will be up to you to make the case for your defense, e. g., it was an accident, it was mere negligence, it was justified.


Now let's look at the basic legal reality of the use of force in self defense.


Our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.


However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.


Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.


Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.


The amount of force an actor my justifiably use in self defense will depend on the level of the threat.


Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --


Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;


Opportunity, i. e., the assailant was capable of immediately deploying such force; and


put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.


"Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."


"Opportunity" could be established by showing proximity, lack of barriers or the like.


"Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.


And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.


If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.


Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.


If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.


Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.


Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?


In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.


It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.


It could also be another matter if you left the safety of your house to confront someone on your property.


Good, general overviews of the topic can be found at UseofForce.us (http://www.useofforce.us/) and in this booklet (http://www.armedcitizensnetwork.org/images/stories/Hayes-SDLaw.pdf) by Marty Hayes at the Armed Citizens' Legal Defense Network.


Since the maintenance man here apparently intentionally shot three people, two of whom died, his actions satisfy the elements of the crimes of manslaughter (at least) and aggravated assault (although different jurisdictions might give those crimes different names.


If he now claims that he is free of criminal responsibility because his use of lethal force was justified, it will be up to him to present evidence establishing, prima facie, his legal justification.


Maybe the evidence, once reviewed, will be sufficient to exonerate him at an early stage. Or maybe it will be up to a jury to decide.


But anyone who uses violence against another human, even if he claims self defense, will need to go through the process until it can be decided that the use of force was legally justified.


Often a failure to establish justification will result in a conviction for voluntary manslaughter.


Emotional stress will often negate malice and thus takes murder off the table. Emotional stress could come from provocation insufficient to reasonably justify a response with lethal force, a genuine but unreasonable fear, surprise (finding your spouse in flagrante delicto with someone), etc.


Sometimes something like a delay or re-engagement could be found to add the element of malice necessary for a conviction of murder, e. g., such as in the Ersland case (http://www.cbsnews.com/news/oklahoma-city-pharmacist-jerome-ersland-found-guilty-of-murder-in-killing-of-suspect/).


Whether or not a defendant acted with malice is generally a jury question. So in most cases, however, the charge will be murder. The jury will be then usually have the option to convict of voluntary manslaughter as a less included offense if it finds criminal culpability but no malice.
Great exposition! Much thanks.

I don't quite know based on it where my example would lie: in my state perhaps Murder II (Murder I is for killing Police or for particularly heinous Murder), the latter though is only my belief, I'm not sure of that. I am sure it is the Charge for killing Police.

I think any Manslaughter must be unintentional, the intention being to harm and a killing the unintended result of the harm. Like I said in an earlier post, a punch that ends up throwing another off backwards where he hits his head on the sidewalk and dies. If I'm correct about that, that definition would not fit my example.

A real case of claimed SD which which was found to be Murder II happened a number of years ago in my area. Briefly, in a mall in daytime, there was a disagreement over which driver in which car was entitled to an empty parking space in a crowded parking lot. One was white and a new CCW, had just gotten it, and was screaming at the other driver and acting hysterical, and one was a minority. The latter left his car and began walking to the other car and driver. His wife said her husband had said in a tired voice that he better talk-down the other driver because he was acting nuts about a minor mater. Multiple witnesses reported he was not acting aggressively and began walking a distance away from the other car and driver. As soon as he get out of his car and began walking, the CCW drew, began firing out of his window and hit the other man multiple times, killing him instantly. It was found the dead man had his wife and baby in the car. He was a physician. The CCW told Police the man being a minority and walking to him he believed he would be attacked and didn't trust or like minorities to begin with. He was Charged with 2nd Degree Murder and convicted of that Charge in a Jury Trial. He was given a prison sentence of 20 years, something like that. When he would become eligible for Parole I don't remember.

Frank Ettin
July 19, 2014, 09:47 PM
But isn't Manslaughter an intention to harm but not kill? Like a fight, you intend to hit the guy but he falls backward and cracks his skull on the sidewalk and dies...No. See my post above.

Note also;

In self defense, the intent is not to kill. It is to stop. Sufficient force to stop might result in death, but death is never the actual intended result.


However, use of a degree of force reasonably likely to cause death or grave bodily injury, which force actually results in death, is sufficient intend to support a conviction for voluntary manslaughter or murder, depending on the state of mind found by the jury.

gvf
July 20, 2014, 08:18 AM
No. See my post above.

Note also;

In self defense, the intent is not to kill. It is to stop. Sufficient force to stop might result in death, but death is never the actual intended result.


However, use of a degree of force reasonably likely to cause death or grave bodily injury, which force actually results in death, is sufficient intend to support a conviction for voluntary manslaughter or murder, depending on the state of mind found by the jury.
Well, by definition of most SD Law you are using Lethal Means, which must include the intent to have a lethal result if necessary. The mere fact of shooting someone mid-torso or hitting them over the head with a nearby tree branch, using a knife to try to stab him in his guts, the immediate intent is to cause lethal injury and the overall intent is to stop the attack. I would think Manslaughter didn't really fit the bill for there the resulting death is completely unintended. In fact, if an SD killing was Manslaughter it would never be able to be Murder, they are mutually exclusive regarding intent and I know Murder is the Charge more than a few times and has ended in Conviction.

Confusing area though. It may all be a call by the DA depending on the circumstances, though personally Manslaughter seems to fail to describe the event to me.

gun_with_a_view
July 20, 2014, 09:39 AM
Expounding on Mr. Ettin's excellent summation, being as this event went down on public property, there is nothing in the OP that a reasonable person would or could find to be out of the ordinary in the behavior of the deceased. You have used what some would describe as your license to kill, only to discover the license is invalid under the circumstances.

If, however, this had occurred on private property posted either by signage or by law, and preferably your private property or property upon which you had permission to legally be, the matter may have concluded in your favor.

lemaymiami
July 20, 2014, 09:48 AM
Thanks Frank... your remarks are far clearer than my poor effort.

Anyone not clear on this whole topic is well advised to study on it a bit -long before the day when you reach for a gun instead of a telephone....

Kleanbore
July 20, 2014, 09:52 AM
Posted by gun_with_a_view: If, however, this had occurred on private property posted either by signage or by law, and preferably your private property or property upon which you had permission to legally be, the matter may have concluded in your favor.What would make you believe that for a moment?

The shooter in this hypothetical scenario certainly had the right to be where he was.

The decedent had also been lawfully present at the scene.

But even if the latter had not been true--say, had the decedent been trespassing, knowingly or otherwise--that fact would most certainly have not given the shooter any justification to either threaten or use deadly force.

Private property? The property owner can ask a trespasser to leave. In a few states he can use on-deadly physical force to try to make him leave.

But that's about it.

BSA1
July 20, 2014, 10:33 AM
*Murder 1st
**Murder 2nd degree
If the victim was a different race add some type of hate crime
Illegal possession of firearm (you did not say you had a conceal carry permit)

Possible Federal charge for violating victim’s civil rights.

*As the D.A. I reserve the right to upgrade the charge to Murder 1st after I read your social media sites (facebook, linked-in, discussion forums), hate groups you belong too, comments you have made to others, etc. Since you have discussed this previously on THR I would charge you with Murder 1st.

**Murder 2nd if I could not find any evidence of the factors I listed in Murder 1st

Frank Ettin
July 20, 2014, 11:41 AM
...by definition of most SD Law you are using Lethal Means, which must include the intent have a lethal result if necessary...This is absolutely not true.

Self defense is a justification for using force against someone else to prevent him from intentionally touching you in a harmful or offensive way. Only the degree of force necessary to accomplish that purpose can be justified.

So if someone is simply pushing you around, you may be legally justified in committing a battery (yourself intentionally touching him in a harmful or offensive way) to stop that, but using a degree of force not reasonably likely to cause him serious injury, e. g. you could swat his hands away from you. You could not justify using lethal force.

Only if he escalates the fray and begins using lethal force, e. g., he picks up a knife and manifests the intent to immediately attack you with it, could you justify a use of lethal force in response.

...I would think Manslaughter didn't really fit the bill for there the resulting death is completely unintended...How would you know? When were you admitted to the Bar? On what bases do you make that statement? Can you cite some actual law on the issue?

...if an SD killing was Manslaughter it would never be able to be Murder, they are mutually exclusive regarding intent...They are not mutually exclusive as to intent. They reflect the same intent. They involve different states of mind.

Kleanbore
July 20, 2014, 11:58 AM
Good points, Frank. I missed the first one, and could not figure out what the poster was trying to say on the others.

Carl N. Brown
July 20, 2014, 12:18 PM
The Sanford PD incident report on the shooting of Trayvon Martin by George Zimmerman lists the offense as being investigated as "Homicide -- Negligent Manslaughter -- unnecessary killing to prevent unlawful act" with UCR code 090C. I suspect a lot of adjudicated self defense killings are investigated initially as suspected manslaughter (as are a lot of adjudicated murders).

So if a reasonable person (prosecutor, grand jury, trial jury) would not feel it was reasonable to fear death or greivious bodily harm, homicide to prevent an unlawful act would be Negligent Manslaughter under Florida 782.11. IIRC.

Your state laws and court precedents not only will differ but they will change over time as cases are adjudicated and establish case law.

Onward Allusion
July 20, 2014, 12:49 PM
5 min walk. While walking I see another man approaching from the opposite direction. He's walking faster than usual. As he nears he puts his hand in his pocket and begins to draw something out. I think I see the butt of a gun and draw and shoot him. He begins to stagger and fall, but convinced he still may attack I shoot 5 more times, hitting him each time in the torso. He's dead.

<SIGH> I would hope that you would end up in prison for a bit because you would be a complete freaking moron for doing something like that. Yeah, some kind of murder charge or at the very least some kind of manslaughter charge.

BTW, you guys are too nice.

Kleanbore
July 20, 2014, 01:59 PM
Posted by Carl N. Brown: So if a reasonable person (prosecutor, grand jury, trial jury) would not feel it was reasonable to fear death or greivious bodily harm, homicide to prevent an unlawful act would be Negligent Manslaughter under Florida 782.11. IIRC.Says nothing about the hypothetical case at hand, even if it were to take place in FL.

gun_with_a_view
July 20, 2014, 02:09 PM
The OP's goose is cooked in this scenario. He's mentally defective enough to be on a banned list for gun ownership/purchase IMHO. Good thing this is just a scenario on an internet message board.

gvf
July 20, 2014, 02:12 PM
This is absolutely not true.

Self defense is a justification for using force against someone else to prevent him from intentionally touching you in a harmful or offensive way. Only the degree of force necessary to accomplish that purpose can be justified.

So if someone is simply pushing you around, you may be legally justified in committing a battery (yourself intentionally touching him in a harmful or offensive way) to stop that, but using a degree of force not reasonably likely to cause him serious injury, e. g. you could swat his hands away from you. You could not justify using lethal force.

Only if he escalates the fray and begins using lethal force, e. g., he picks up a knife and manifests the intent to immediately attack you with it, could you justify a use of lethal force in response.

How would you know? When were you admitted to the Bar? On what bases do you make that statement? Can you cite some actual law on the issue?

They are not mutually exclusive as to intent. They reflect the same intent. They involve different states of mind.
Just stating my opinion, based on my State's Law, in the end we all are just giving opinions. In each case a Court will decide if the Charge is justified.

My opinion is based on New York Penal Codes Definition of each, Manslaughter and Murder. The First I quoted verbatim from the Penal Code, Manslaughter. For the latter, Murder, I quoted Find Law's more succinct statement of the Penal Code's, which is so long no one would read. If you want it yourself just search under "murder + new york penal code"

MANSLAUGHTER:

"Penal


§ 125.20 Manslaughter in the first degree.
A person is guilty of manslaughter in the first degree when:
1. With intent to cause serious physical injury to another person, he
causes the death of such person or of a third person; or
2. With intent to cause the death of another person, he causes the
death of such person or of a third person under circumstances which do
not constitute murder because he acts under the influence of extreme
emotional disturbance, as defined in paragraph (a) of subdivision one of
section 125.25. The fact that homicide was committed under the influence
of extreme emotional disturbance constitutes a mitigating circumstance
reducing murder to manslaughter in the first degree and need not be
proved in any prosecution initiated under this subdivision; or
3. He commits upon a female pregnant for more than twenty-four weeks
an abortional act which causes her death, unless such abortional act is
justifiable pursuant to subdivision three of section 125.05; or
4. Being eighteen years old or more and with intent to cause physical
injury to a person less than eleven years old, the defendant recklessly
engages in conduct which creates a grave risk of serious physical injury
to such person and thereby causes the death of such person.
Manslaughter in the first degree is a class B felony.



Penal


§ 125.15 Manslaughter in the second degree.
A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person; or
2. He commits upon a female an abortional act which causes her death,
unless such abortional act is justifiable pursuant to subdivision three
of section 125.05; or
3. He intentionally causes or aids another person to commit suicide.
Manslaughter in the second degree is a class C felony."
---------------------------------------------------------------------

MURDER

http://statelaws.findlaw.com/new-york-law/new-york-second-degree-murder-laws.html

"Overview of New York Second Degree Murder Laws

Under New York criminal law, murder in the second degree is one of several forms of homicide, or conduct which causes the death of a person. Other forms of homicide include first-degree murder, manslaughter, criminally negligent homicide, and abortion. Pursuant to the statute, a person commits second-degree murder in one of five ways: (1) with the intent to cause the death of another person, he or she causes the death of such person or a third person; (2) under circumstances demonstrating a "depraved indifference to human life," the defendant "recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person"; (3) acting alone or in concert with others, the defendant commits or attempts to commit a specified felony (including robbery, burglary, kidnapping, arson, rape, and sexual abuse) and, in the course of and in furtherance of such crime or of immediate flight therefrom, he or she causes the death of a non-participant; (4) under circumstances demonstrating a "depraved indifference to human life," a defendant 18 years old or more "recklessly engages in conduct which creates a grave risk of serious physical injury or death" to a person less than 11 years old and causes the death of such person; or (5) while in the course of committing a specified crime such as rape, a criminal sexual act or sexual abuse, a defendant 18 years old or more intentionally causes the death of a person less than 14 years old.

The second type of second-degree murder listed above - "depraved indifference" murder - is a form of reckless homicide. To convict a defendant for second-degree depraved indifference murder, the prosecution must prove - in addition to the defendant's creation of a "grave risk of death" to another person - two distinct mens reas, or mental states: recklessness, and a "depraved indifference to human life." Convictions for depraved indifference murder have become increasingly rare, and often involve conduct creating danger to a group of people rather than a single individual.
-----------------------------------------------------------------------

The difference in relation to Intent is this:

MANSLAUGHTER:

" 1. With intent to cause serious physical injury to another person, he
causes the death of such person or of a third person;"

MURDER: ": (1) with the intent to cause the death of another person, he or she causes the death of such person or a third person;"

In my words, Manslaughter: intention to cause serious injury and instead a death results.


Murder: intention to cause death which indeed does cause death.

Is this proof of what I say? no it's what I base my opinion on. That's all. Fine with me if you have another or your area has another.

The means used in Lethal Self-Defense are Lethal so their is an intent to cause death if that is necessary to stop the attack, the over-all intent. You're explanation I believe treats the two, Lethal Means and Stopping an Attack as oppositional. "You are not doing this, you are doing that."

But they are inclusive, the second including the first: "You are Stopping an Attack by causing the death of the attacker [if there is no other way]. Your intent to stop the attack includes the intent to cause death [if necessary].

If it was Manslaughter it would mean you were trying to cause physical injury grave enough to stop a lethal attack but that is all, just injury. No more. So you would be aiming at the attacker's lower leg or foot - or lower arm and hand, and your hand jerked and you hit him mistakenly in mid-torso causing death.

Or you meant to knock him out with the tree branch only giving a glancing blow, but his fall caused his fractured skull and brain-hemorrhage resulting in death.

But we know this is not the case. We use lethal actions. We aim for mid-torso with the gun or mid-skull with the branch.

This is my view.

Kleanbore
July 20, 2014, 02:40 PM
Lessee....gfv, do you seriously believe that you would ever convince the triers of fact that your intent in having shot someone several times with a firearm had been only to cause injury, and not death?

...you were trying to cause physical injury grave enough to stop a lethal attack but that is all, just injury. No more.With a firearm? Come now.

So you would be aiming at the attacker's lower leg or foot - or lower arm and hand, and your hand jerked and you hit him mistakenly in mid-torso causing death.Two things:
The State's expert witnesses would certainly testify that a victim who had actually been faced with an imminent threat of death or serious injury would not have the opportunity to aim precisely, and that qualified trainers do not teach tryng to do that; and
a shot to a leg artery can be expected to cause death more quickly than many shots to mid-torso.

Frank Ettin
July 20, 2014, 02:49 PM
Just stating my opinion, based on my State's Law, in the end we all are just giving opinions. In each case a Court will decide if the Charge is justified.

My opinion is based on New York Penal Codes Definition of each, Manslaughter and Murder. The First I quoted verbatim from the Penal Code, Manslaughter. For the latter, Murder, I quoted Find Law's more succinct statement of the Penal Code's, which is so long no one would read. ...And all that tracks quite well with my post outlining the basic law on the subject. Specific statutes and case laws adds detail and shading, but the foundational principles are as I described.

Note for example the first clause of §125.20:A person is guilty of manslaughter in the first degree when:

1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or...

And compare it with my statement in post 11:...use of a degree of force reasonably likely to cause death or grave bodily injury, which force actually results in death, is sufficient intend to support a conviction for voluntary manslaughter...


Note also, in the second clause of §125.20:...The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter...

And compare it with my statement in post 8:...Emotional stress will often negate malice and thus takes murder off the table....


And nothing in the New York statutes you cited supports your contentions that (post 10):...I think any Manslaughter must be unintentional, the intention being to harm and a killing the unintended result of the harm...or (post 12) ...I would think Manslaughter didn't really fit the bill for there the resulting death is completely unintended...or (post 23):...The difference in relation to Intent is this:

MANSLAUGHTER:

" 1. With intent to cause serious physical injury to another person, he
causes the death of such person or of a third person;"

MURDER: ": (1) with the intent to cause the death of another person, he or she causes the death of such person or a third person;"

In my words, Manslaughter: intention to cause serious injury and instead a death results.


Murder: intention to cause death which indeed does cause death...

Those assertions are based on an incorrect reading of §125.20. Let's take another look at that statute (emphasis added):§ 125.20 Manslaughter in the first degree.

A person is guilty of manslaughter in the first degree when:

1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or

2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance...

Note also that all opinions are not equal. A opinion of someone with specialized education, training and experience in a field is one thing. An opinion of someone without such professional qualifications is quite another.

Frank Ettin
July 20, 2014, 03:07 PM
....The means used in Lethal Self-Defense are Lethal so their is an intent to cause death if that is necessary to stop the attack, the over-all intent. You're explanation I believe treats the two, Lethal Means and Stopping an Attack as oppositional. "You are not doing this, you are doing that."

But they are inclusive, the second including the first: "You are Stopping an Attack by causing the death of the attacker [if there is no other way]. Your intent to stop the attack includes the intent to cause death [if necessary]...And we've discussed on any number of occasions why this sort of analysis is meaningless and useless.

For example:

In this post (http://www.thehighroad.org/showpost.php?p=8274292&postcount=6):Tell me about how you shoot to stop the threat.

If you are shooting to stopping the threat you had better have decided to kill somebody.No, rather I have accepted that the death of the assailant is a possible consequence of my use of lethal force to stop him.

That is a fundamental difference between shooting with the intent to stop and shooting with the intent to kill. If I'm forced to shoot someone to protect my life of the life of an innocent, my purpose is served if the assailant stops, even if he doesn't die.

The assailant's death may be a natural result of my use of lethal force to stop him, and I must accept that; but his death is not my intended result. If it were, I would continue shooting even after he stopped. But ask how well that worked out for Jerome Ersland (http://www.cbsnews.com/8301-504083_162-20066839-504083.html).

Shooting to stop is more than just "politically correct." It is the legal limit on your justified use of lethal force. If you have stopped the threat, you are not justified in continuing to use lethal force against the aggressor, even if he is still breathing.

And by the way, this distinction is recognized in the Catechism of the Roman Catholic Church (http://www.scborromeo.org/ccc/p3s2c2a5.htm) (footnotes omitted, emphasis added):Legitimate defense

2263 The legitimate defense of persons and societies is not an exception to the prohibition against the murder of the innocent that constitutes intentional killing. "The act of self-defense can have a double effect: the preservation of one's own life; and the killing of the aggressor. . . . The one is intended, the other is not."...

2264 Love toward oneself remains a fundamental principle of morality. Therefore it is legitimate to insist on respect for one's own right to life. Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow:

If a man in self-defense uses more than necessary violence, it will be unlawful: whereas if he repels force with moderation, his defense will be lawful. . . . Nor is it necessary for salvation that a man omit the act of moderate self-defense to avoid killing the other man, since one is bound to take more care of one's own life than of another's....

2265 Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm. For this reason, those who legitimately hold authority also have the right to use arms to repel aggressors against the civil community entrusted to their responsibility....


This post by (http://www.thehighroad.org/showpost.php?p=8274296&postcount=7) another lawyer: I think a lot of times where this conversation breaks down is the difference between accepting the mindset that your actions are likely to result in the death of another person and the incorrect idea that your goal is to kill the other person. Those are two different concepts but on the Internet anyway, many people do not distinguish between them well.


This post (http://www.thehighroad.org/showpost.php?p=8278308&postcount=15):...I am in defense of my life, or others lives that are in need of protection, and am now willing to kill my perceived threat...But that is still different from shooting with the intent to kill.

True, I accept that the death of the assailant is a possible consequence of my use of lethal force to stop him. But there is still a fundamental difference between shooting with the intent to stop and shooting with the intent to kill. If I'm forced to shoot someone to protect my life of the life of an innocent, my purpose is served if the assailant stops.

The assailant's death may be a natural result of my use of lethal force to stop him, and I must accept that; but his death is not my intended result. If it were, I would continue shooting even after he stopped. But ask how well that worked out for Jerome Ersland (http://www.cbsnews.com/8301-504083_162-20066839-504083.html).

gvf
July 20, 2014, 03:09 PM
Lessee....gfv, do you seriously believe that you would ever convince the triers of fact that your intent in having shot someone several times with a firearm had been only to cause injury, and not death?

With a firearm? Come now.

Two things:
The State's expert witnesses would certainly testify that a victim who had actually been faced with an imminent threat of death or serious injury would not have the opportunity to aim precisely, and that qualified trainers do not teach tryng to do that; and
a shot to a leg artery can be expected to cause death more quickly than many shots to mid-torso.

No, that's my point. I do intend to kill the attacker. I was pointing that out to another poster who believes because you are intending to stop an attack you are not really intending to kill. My opinion is that you're doing both, if you don't you'll die.

Kleanbore
July 20, 2014, 03:11 PM
Oh.

gvf
July 20, 2014, 03:59 PM
"And we've discussed on any number of occasions why this sort of analysis is meaningless and useless. ..."

I understand your reasoning I don't accept the conclusion. In my state Self-Defense is a Justification for Murder, meaning I intended death by my actions and death results. It is not a Justification for Manslaughter where there is no intent to kill.

Self-Defense adds the further goal of doing this and intending this for the broader goal of stopping an attack, saving my life. It still includes the intent and action to cause death which results in death.

That is what you are intending but are legally forgiven for because of your ultimate goal.

Your reasoning would make Self-Defense a Justification for Manslaughter. Because you consider Self-Defense as not including the intention to kill.

But it is in fact a Justification for Murder here.

gun_with_a_view
July 20, 2014, 04:33 PM
Justification for murder?

You hope your action to defend yourself will be seen as justified in light of the threat you faced. But there is no such thing under any state statute in the U.S. as justification for murder, a premeditated act.

Kleanbore
July 20, 2014, 04:35 PM
Posted by gvf: In my state Self-Defense is a Justification for Murder, meaning I intended death by my actions and death results. It is not a Justification for Manslaughter where there is no intent to kill.WHAT?

In all jurisdictions, self defense is a defense against any criminal charge involving the use of force against another person. Such charges could include premeditated murder, a lesser charge of murder, or manslaughter, as long as the action was intentional and deliberate.

To prevail in such a defense of justification, the defendant must present at least some evidence on each of the following (working from memory, here; the source is Lisa Steele, writing for the NACDL):

the force had been immediately necessary to defend against a threat of bodily harm that was immininent;
the defendant used no more force than had been reasonably nescessary;
the defendant had not instigated the confrontation, or if he had, he had attempted to withdraw before using force;
the confrontation did not involve a mutual agreement to enter into combat.


There may be others that do not come immediately to mind.

Some added points:

"necesssary" means that the defndant had had no other safe means of avoiding harm; the absence of a requirement to retreat in some jurisdictions may color the assessment of that;
the defendant's actions will be justified on the basis of a reasonable belief concerning each of the above factors, and justification does not hinge upon facts that were not known to him at the time;
the point pertaining to the amour of force means necessary that deadly force will be justified only when the imminent threat is reaonably believed to be one of death or serious injury;
force may be justified when it is used to defend a third person, under certain limiting circumstances.


There is certainly nothing that limits a defense of justification due to the necessity of self defense to a case in which the defendant intended to kill.

I'm sure Frank will make necessary corrections, clarifications, and amplifications later.

RustyShackelford
July 20, 2014, 06:32 PM
To reply to #19;
It's a widely held belief in central Florida that the lead investigator & the Sanford PD command staff at first, wanted to frame the Martin death investigation as a accident, claiming that Zimmerman fired the 9x19mm pistol once in a panic & that they could say it was a manslaughter case.
GZ's use of DA only Kel-Tec PF-9 helped show that he wasn't "reckless" or fired by accident. Zimmerman's defense atty; Mark O'Mera pointed that out.
Chris Soreno, the Sanford PD homicide investigator also testified that he used deceit & was not honest with Zimmerman during police interviews. This testimony is in the Seminole County court records.

Rusty

lemaymiami
July 20, 2014, 07:21 PM
I noted something in one of the previous posts that needs some clarification - particularly about initial police reports of any kind of a serious incident. In every case the reporting officer titles his initial report as he believes it should be -but in many cases his/her line suprervisor (their sergeant in most cases) will have input and may have the initial report re-titled if they believe it appropriate.... At the next level up a shift lieutenant or watch commander will have the final say - but everything to that point is from the Department's initial view of the incident/crime. Nothing in that original report commits or binds anyone up the line (particularly the prosecutor's folks) from charging (or not) in a completely different manner based on later information.

Speaking from experience it would be nice if the initial officer's findings were gospel - but that's just not how things work. When I was a sergeant, then later a lieutenant I was over-ruled in more than one instance by folks above me - that's just the reality....

By the way, young officers usually have quite a bit of difficulty with this sort of stuff... Idealism dies hard -but it will die on the job, period.

gvf
July 20, 2014, 07:51 PM
And all that tracks quite well with my post outlining the basic law on the subject. Specific statutes and case laws adds detail and shading, but the foundational principles are as I described.

Note for example the first clause of §125.20:

And compare it with my statement in post 11:


Note also, in the second clause of §125.20:

And compare it with my statement in post 8:


And nothing in the New York statutes you cited supports your contentions that (post 10):or (post 12) or (post 23):

Those assertions are based on an incorrect reading of §125.20. Let's take another look at that statute (emphasis added):



[QUOTE]
Note also that all opinions are not equal. A opinion of someone with specialized education, training and experience in a field is one thing. An opinion of someone without such professional qualifications is quite another.


Well, as to the above comment your opinion is that unless you are the Judge in a case. What is your expertise in the Law that is so elevated above others?

The Law I quoted states "A person is guilty of manslaughter in the first degree when
with intent to cause serious physical injury to another person, he
causes the death of such person."

The other Law I quoted states "a person commits second-degree murder.. [when with] the intent to cause the death of another person, he or she causes the death of such person."

Can't you see the difference? One intent, to cause physical harm, produces a much different and more serious result, death. Death is not the intention. Physical harm is.

The other intent is to cause death which results in death, exactly the same as the intent.

I have never heard of a case of Manslaughter different than this. In none was the intent more than to punch, fight, push and the death that resulted was far from the person's intent.

For all your expertise I can't see that you know the difference between Manslaughter and Murder - that the first lacks the intent to kill and the second has the intent to kill. I don't mean to be offensive but the fact is that's common knowledge. Put it in any search engine if you like "What is the difference between Manslaughter and Murder?" and every result will say the same thing I did.

In any case, for me while enjoyable this all has gone far afield from my Original Question: what the Charge would usually be if Self-Defense was found not justified and rejected.

Take Care now,

Frank Ettin
July 20, 2014, 08:06 PM
Well, as to the above comment your opinion is that unless you are the Judge in a case. What is your expertise in the Law that is so elevated above others?....


I'm an active member of the Bar admitted to practice in 1976. I made my living practicing law until I retired in 2007. And I still do some consulting.

Doc7
July 20, 2014, 08:40 PM
I just want to throw a +1 out there to the response to the OP that the intent of a self-defensive shooter should never be to kill someone. The ONLY reason a gun is in play during a self-defense incident is because that is the final and only option the defender has to attempt to stop the threat.

One is not firing bullets at someone because they want to cause them pain, suffering, or death. One is firing bullets towards the threat because that is the last line of defense against receiving such pain/suffering/death yourself (various jurisdictions include property rights and other items in this list as well).

If at any point during the draw, presentation, and firing of the weapon, the defender is thinking, "I want to cause this person pain and/or death and that is why I am shooting" he is not using his weapon in self defense any longer and is not in the proper mindset of a gun carrying individual.


My opinion.

gvf
July 20, 2014, 08:40 PM
Justification for murder?

You hope your action to defend yourself will be seen as justified in light of the threat you faced. But there is no such thing under any state statute in the U.S. as justification for murder, a premeditated act.
This the Law in NY State. The relevant section is two.

"Sec. 35.15 Justification; use of physical force in defense of a person

1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:
(a) The latter`s conduct was provoked by the actor himself with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case his use of physical force is nevertheless justifiable if he has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: (a) He reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating; except that he is under no duty to retreat if he is:
(i) in his dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or
(b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery; or
(c) He reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20"

So you can use deadly force as a Justification if deadly force is being used against you by another (and the conditions named have all been met).

Self-Defense is a Justification for "deadly physical force", i.e. killing, i.e. murder, all Crimes involving the taking of human life, which your act would make you guilty of if you lacked that Justification.

gun_with_a_view
July 20, 2014, 09:20 PM
Just don't let on that you intended to kill the deceased. You merely intended to stop the aggressor with what ever degree of force you employed. If he lived or died is immaterial as long as you intended to stop him and no more than that.

Kleanbore
July 20, 2014, 09:44 PM
Posted by gvf: So you can use deadly force as a Justification if deadly force is being used against you by another (and the conditions named have all been met).More accurately, a person may be justified (excused) for the use of deadly force under such circumstances.

Self-Defense is a Justification for "deadly physical force", i.e. killing, i.e. murder, what your act would be if you lacked that JustificationMuch more accurately, self defense provides a justification for the use of, or the threat of, either non-deadly physical force or deadly physical force, and it is a defense against a charge of murder, manslaughter, battery, or assault, depending upon the circumstances.

That is what the law that you quoted says and means.

Sam1911
July 20, 2014, 10:15 PM
There appears to be some confusion between the acts (and weapons) that constitute "deadly force", and when those acts and the use of such weapons is justified -- and the REASON those weapons and acts are employed.

Deadly force includes things like guns/shooting, knives/stabbing or slashing, bats/clubbing, and so forth.

The fact that they are CALLED or IDENTIFIED as "deadly force" does not mean that death is the goal authorized by the law.

As in, "well the law says I can use deadly force, so I'm allowed to go ahead and kill this guy."

The law is recognizing that you have to act with compelling force to stop some kinds of attack, and the law defies some of those compelling force vectors as "deadly force" because death may be commonly resultant from their use (though far from universally so), and recognizes that since the employment of "deadly force" is allowable under those conditions, the attacker MAY indeed die. And that's ok.

But the law is not saying, "he crossed the line, so go ahead and KILL him."

If that was the case, then situations like the Ersland case (among many others over the years) would be very different.

80% of gunshot victims survive. But most of them were STOPPED from whatever they were doing. If killing was acceptable as an INTENT, then it would be perfectly permissible for the defender to go ahead and finish the job.

And I believe we're all clear that it is most definitely NOT ok to execute a stopped threat. Right?

Frank Ettin
July 20, 2014, 11:28 PM
...The Law I quoted states "A person is guilty of manslaughter in the first degree when with intent to cause serious physical injury to another person, he causes the death of such person."....No, the law you quoted states (emphasis added):§ 125.20 Manslaughter in the first degree.

A person is guilty of manslaughter in the first degree when:

1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or

2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance...

...The other Law I quoted states "a person commits second-degree murder.. [when with] the intent to cause the death of another person, he or she causes the death of such person."...And here you did not quote the law. You quoted a commentary. The exact and complete statement in that commentary (http://statelaws.findlaw.com/new-york-law/new-york-second-degree-murder-laws.html) is:...Pursuant to the statute, a person commits second-degree murder in one of five ways: (1) with the intent to cause the death of another person, he or she causes the death of such person or a third person; (2) under circumstances demonstrating a "depraved indifference to human life," the defendant "recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person"; (3) acting alone or in concert with others, the defendant commits or attempts to commit a specified felony (including robbery, burglary, kidnapping, arson, rape, and sexual abuse) and, in the course of and in furtherance of such crime or of immediate flight therefrom, he or she causes the death of a non-participant; (4) under circumstances demonstrating a "depraved indifference to human life," a defendant 18 years old or more "recklessly engages in conduct which creates a grave risk of serious physical injury or death" to a person less than 11 years old and causes the death of such person; or (5) while in the course of committing a specified crime such as rape, a criminal sexual act or sexual abuse, a defendant 18 years old or more intentionally causes the death of a person less than 14 years old.

The second type of second-degree murder listed above - "depraved indifference" murder - is a form of reckless homicide. To convict a defendant for second-degree depraved indifference murder, the prosecution must prove - in addition to the defendant's creation of a "grave risk of death" to another person - two distinct mens reas, or mental states: recklessness, and a "depraved indifference to human life."...

It's also important to have a look at the actual statute, §125.25:§ 125.25 Murder in the second degree.

A person is guilty of murder in the second degree when:

1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:

(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime; or

(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime; or...

...For all your expertise I can't see that you know the difference between Manslaughter and Murder - that the first lacks the intent to kill and the second has the intent to kill. I don't mean to be offensive but the fact is that's common knowledge....Really now? What complete drivel. Understanding the law is obviously not a matter of common knowledge. You certainly don't understand it.

gun_with_a_view
July 20, 2014, 11:59 PM
<<<Murder...has the intent to kill>>>

Correct. And if you admit to or disclose an intent to kill, a claim of self defense will get you...convicted...of murder.

BSA1
July 21, 2014, 12:17 AM
Not to stray too far from the O.P's question but it is important to bear in mind any use of force can result in death. Weapons such as Tazers can cause death even when properly used. Simply pushing someone out of the way can cause them to fall striking their head on the ground causing death.

NMPOPS
July 21, 2014, 04:01 AM
I think the point that the OP is missing is that he thinks that if it is okay to use deadly force than it is okay to finish the job and kill him. Which of course it is not.
In his scenario, he would have a hard time justifying self defense for the first shot and no chance whatsoever in justifying the next five. In my state and in NY he would be going to jail for a long time on 2nd Degree Murder charges.

gvf
July 21, 2014, 04:21 AM
WHAT?

In all jurisdictions, self defense is a defense against any criminal charge involving the use of force against another person. Such charges could include premeditated murder, a lesser charge of murder, or manslaughter, as long as the action was intentional and deliberate.

To prevail in such a defense of justification, the defendant must present at least some evidence on each of the following (working from memory, here; the source is Lisa Steele, writing for the NACDL):

the force had been immediately necessary to defend against a threat of bodily harm that was immininent;
the defendant used no more force than had been reasonably nescessary;
the defendant had not instigated the confrontation, or if he had, he had attempted to withdraw before using force;
the confrontation did not involve a mutual agreement to enter into combat.


There may be others that do not come immediately to mind.

Some added points:

"necesssary" means that the defndant had had no other safe means of avoiding harm; the absence of a requirement to retreat in some jurisdictions may color the assessment of that;
the defendant's actions will be justified on the basis of a reasonable belief concerning each of the above factors, and justification does not hinge upon facts that were not known to him at the time;
the point pertaining to the amour of force means necessary that deadly force will be justified only when the imminent threat is reaonably believed to be one of death or serious injury;
force may be justified when it is used to defend a third person, under certain limiting circumstances.


There is certainly nothing that limits a defense of justification due to the necessity of self defense to a case in which the defendant intended to kill.

I'm sure Frank will make necessary corrections, clarifications, and amplifications later.
Right. You are not guilty of one of the Usual Crimes nor given one of the usual penalties for taking a human life if (in NY State) either the Justification of Self-Defense or the Justification of Insanity are present. (In NY State "Justification and Necessity" are treated as pretty much one and the same.)

gvf
July 21, 2014, 04:25 AM
I'm an active member of the Bar admitted to practice in 1976. I made my living practicing law until I retired in 2007. And I still do some consulting.
Very good.

gvf
July 21, 2014, 04:43 AM
No, the law you quoted states (emphasis added):

And here you did not quote the law. You quoted a commentary. The exact and complete statement in that commentary (http://statelaws.findlaw.com/new-york-law/new-york-second-degree-murder-laws.html) is:

It's also important to have a look at the actual statute, §125.25:

Really now? What complete drivel. Understanding the law is obviously not a matter of common knowledge. You certainly don't understand it.
I'm afraid I do. At least regarding the difference between Manslaughter and Murder.

It's fine with me if you think otherwise. But it's not fine to characterize my words, which indirectly characterizes me. In this case as "drivel" and by implication a "drivel" thinker and writer.

I have disagreed with your opinion. I have not used such insulting terms for what you write. And I won't.

Now I've posted that. Before I posted my view that our discussion is past the point of illuminating an answer to my question which started the Thread.

I'm about posted-out.

So:

The Best for you,

gvf
July 21, 2014, 05:00 AM
More accurately, a person may be justified (excused) for the use of deadly force under such circumstances.

Much more accurately, self defense provides a justification for the use of, or the threat of, either non-deadly physical force or deadly physical force, and it is a defense against a charge of murder, manslaughter, battery, or assault, depending upon the circumstances.

That is what the law that you quoted says and means.
Yes, a very good statement of Self-Defense against any and all actions of another to harm you to any degree.

I was just responding to Section 2 of the New York Penal Code, which deals specifically with deadly physical force.

pendennis
July 21, 2014, 12:04 PM
In Michigan, you'd be charged with Open Murder and it would be left up to the jury to determine which of the lesser included offenses you're guilty of (or if you're lucky..not guilty of). Here, and under those facts, the self defense standard is basically did you have an honest belief that you're life was in danger, and was that belief a reasonable one in the juries opinion.
Not always. The county prosecutor has discretion when charging murder, either 1st or 2nd degrees. The charge is also used so the prosecutor may modify charges "up or down" as facts emerge in a particular case. When the police forward information to the prosecutor requesting an arrest warrant, the information may not always be crystal clear. Open murder allows the prosecutor to get an arrest warrant, and hold the defendant in custody until the facts of the case become more apparent.

Defendants charged with open murder are generally denied bail or have it set at an impossible amount (e.g. $1 million cash), as is the case with 1st degree murder.

Open Murder: [MCL 767.71] -- Michigan law does not require a prosecutor to choose between First Degree or Second Degree Murder when issuing a complaint, or even at trial. A prosecutor may charge "Open Murder", which is a combination of First and Second Degree Murder, and the jury may determine the appropriate degree based on the proofs.

Frank Ettin
July 21, 2014, 12:12 PM
I'm afraid I do. At least regarding the difference between Manslaughter and Murder....Actually, you do not. You have demonstrated that by not reading/quoting all material portions of relevant statures. You have misled readers of this thread by doing so. I've illustrated your errors by pointing out those significant portions you've ignored of the applicable statutes.

Madcap_Magician
July 21, 2014, 12:20 PM
https://cdn.andrewlorente.com/bc39a5b33ce6753b990f667cdc5cea8f9a473e69

I'm not sure if the OP is being deliberately obtuse or just overthinking his original premise.

If you deliberately kill someone and the facts of the investigation do not bear out a credible case for a self-defense claim, you will be charged with murder.

In the OP's original example, his specific reasonable articulation for his original use of force is questionable. While the 'furtive movement' issue does sometimes justify the use of deadly force, in order to do so the totality of the circumstances must be taken into consideration.

If the totality of the circumstances for the OP is that the other guy was "walking down the street," the furtive-movement-as-threat claim is probably going to fail, especially given what the OP states the witnesses said.

Furthermore, the OP's situation posits that he saw the victim "stagger and fall," but shoots him five more times without articulating a reason for doing so other than a vague and probably unreasonable suspicion "that he might still attack."

Boom, you get charged with murder.

It's not that complicated.

RustyShackelford
July 21, 2014, 09:01 PM
You display "malicious intent" when you knowingly display a loaded firearm & shoot at some one who's wounded or laying on the ground critically injuried.
A gun owner/license holder can't sit in open court & say; "hey, I was shaken up by a bad car accident, I wasn't thinking straight or in the right frame of mind & I shot this guy because I thought he was going to mug me". :uhoh:
If I were on a court jury or panel, Id convict the defendant.
In 2005/2006, I was selected by my area's State Atty(an elected position). I served on his special homicide grand jury for 6mo. We heard the murder cases of a few high profile/violent events. Some were graphic. :eek:
A few were murders caused by a evil person who saw a quick way to resolve a situation by killing a victim & obtaining $ or drugs or property.
Honestly some homicide subjects were caught because they made stupid errors or were vain/brash. One defendant used her boyfriend's cell phone to call 911 & stage a fake home invasion to cover up the murder of her husband. :rolleyes:
She was later convicted on all counts & is now in prison.

Field Tester
July 22, 2014, 01:24 AM
I'm still trying to figure out what the point of this thread is.
Does this have a Bernie Goetz feel to anyone else?

RustyShackelford
July 22, 2014, 04:02 AM
Not to me.
To me, it has a ring of "my buddy/neighbor/relative" really screwed up & they want to get a assessment of what people from different backgrounds-regions might say.
I don't quite make the connection between a traffic accident & a lethal force incident. How are the events related? :confused:

You can't unload a firearm on someone, put them in a ICU or kill them then say; "oh sorry, I was kinda having a bad day" :rolleyes:.

ATLDave
July 22, 2014, 08:08 AM
If a car accident is going to agitate or discombobulate you to the point that a guy putting his hand in his pocket makes you shoot him - if the OP's scenario is in any way plausible to you - then I respectfully suggest that you are not the type of person who needs to carry a firearm, or even have them ready for use at home.

Sav .250
July 22, 2014, 09:27 AM
Very subjective. To many factors. Opinions are one thing but facts rule the day.

Officers'Wife
July 22, 2014, 10:46 AM
Such a question has no answer. As my dad would say it depends on situation and terrain. But you can bet good gold dollars against a yankee paper one that should the situation be found not to justify self defense the consequences will not be pleasant.

Madcap_Magician
July 22, 2014, 11:17 AM
Does this have a Bernie Goetz feel to anyone else?

No, at least Bernie Goetz was actually probably the victim of a crime. The OP's situation is flat-out murder.

gun_with_a_view
July 22, 2014, 03:53 PM
Let us pray the OP does not elect to act as his own attorney...

RustyShackelford
July 22, 2014, 06:54 PM
Post 55 brings up a great point.
You can not turn your mental state or behavior on & off.
If you lose your temper or become irate, you can't just say; I'm going to lose it, then become violent. :uhoh:
You, as a grown adult are accountable & responsible for your actions.

I worked security at a retail location a few years ago where another former security guard came storming in. He started shouting at me & then claimed he just "woke up". :confused:
I cut him off & said; "wait, you got up, got dressed, drove your car here then walked into the store, you didn't just get up".

I agree that if you have anger mgmt or temper problems, a CCW or gun may not be a good idea. :rolleyes:

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