Differeing Views on Significance of Physical Assault?

[coalman]

Recent coverage of (claimed) self-defense shootings got me thinking about how people may hold different views on the significance of being physically assaulted (e.g. getting beaten up), and what is and is not an appropriate response to stop it (when you don't know the outcome and/or when it will end). For example, for some people fighting and/or beating up another person (or getting beaten up) may be more commonplace and no big deal. And, the younger you are, especially for males, the less significant and/or more common it may be. Cultural norms around aggression may play a part making an assault more or less significant, even defining what an "assault" is. Even differences within the individual home environment may have an influence on views. Plus, there is the role of gender and how it may relate (e.g. male assaulting female vs. male assaulting male). It may even be(come) more significant as you get older and/or if you have always been (or become) less robust. For others, it's a huge deal always and regardless. See poll.

 

[Kleanbore]

Posted by coalman: Recent coverage of (claimed) self-defense shootings got me thinking about how people may hold different views the significance of being physically assaulted, and what is and is not an appropriate response to stop it. For example, for some people beating up another person may be common and no big deal. And, the younger you are, especially for males, the less of a big deal it may be. Culture may even play a part. Plus, there is the role of gender and how it may relate (e.g. male assaulting female vs. male assaulting male). For others, it's a huge deal always, and maybe even more so as you get older and/or become less robust.

I'm not at all sure what you mean about the "views on the significance" of being physically assaulted or whether it is "common and no big deal" or "a huge deal".

On the question of "what is and is not an appropriate response to stop it", people may hold different views, but unless they become very conversant in the view of the law and conduct themselves accordingly, they run a real risk of failure in a defense of justification.

If your question is one of when deadly force may be justified in defense against an attacker who is not reasonably believed to possess a weapon, the commonly accepted constructs of a justifiable disparity of force are as follows:

• Female defender, male attacker
• Large attacker, significantly smaller defender
• Fit attacker, infirm defender
• Attacker known by the defender to possess superior fighting skills
• Outnumbered defender

Even in such circumstances, a successful defense can be an uphill battle.

The old adage, "a single punch can kill", though very true, is not a defense.

Culture has nothing to do with it, and differing views don't really matter except (1) in discussions on the Internet by people who think that their view of the way things should be defines the way things are, and (2) in what leads to the critical decision of whether to use deadly force. That decision could be right, or it could be very wrong.

 

[Loosedhorse]

for some people beating up another person may be common and no big deal. And, the younger you are, especially for males, the less of a big deal it may be. Culture may even play a part. Plus, there is the role of gender and how it may relate (e.g. male assaulting female vs. male assaulting male).

I think you have said everything right here. I don't think there is (or should be) a clear recipe for a "clean shoot". Circumstances of a SD shoot are as unique as the persons involved.

I have said before, I don't ever what to shoot someone in SD; but I am prepared to do so if I must. If I ever do, I sure don't want to say to a jury, "well, you see, I was legally justified in shooting him because..." I'd much rather say, "I had no choice: I was convinced that if I didn't fire, if I tried anything else, I would be killed or crippled in the next few moments, and here is why I was convinced of that:..."

In the end, we must convince either a prosecutor or a jury that we were justified. And we must realize that firing because we feel we were justified (or because we feel we had no choice) is not a perfect bar to being convicted; just as waiting "until the last moment" to shoot is no bar to being killed.

Still, (as Rory Miller puts it) we should be careful that we don't "train to go to jail" by deciding we'll shoot too soon. It's a very tough balance to hit; the only advantage we have as defenders is the famous recognition that "detached reflection cannot be demanded in the presence of an uplifted knife." And that is counter-balanced by a whole lot of disadvantages.

 

[we are not amused]

There is a difference between when two men square off for a fight, and when one is assaulted out of the blue.
Different states, have different laws, and more importantly, differing case law.

Still, an physical attack can be quite deadly, and I would have no problem using deadly force to stop such an attack if I felt my life or physical well being was threatened.

I would much rather explain it to a jury of twelve, than be carried by six. There is no point in not defending one's self, if one ends up dead or crippled because of it. Neither is there usually time or opportunity to ask the assaulter if he intends great bodily harm or if he just wants to leave a few bruises and take your wallet (and gun if he finds it).

 

[Owen Sparks]

A criminal assault is not a duel or a sporting event because you did not agree to perticipate. Therefore you have no moral obligation to fight fair or give your assailant a sporting chance. After all, more people are murdered with bare hands and feet than with rifles!

 

[Shoobee]

That's right, we briefly talked about all this before.

I remember Kleanbore's list.

Wasn't Goetz in NYC the poster child for this issue?

 

[Kleanbore]

Still, an physical attack can be quite deadly, and I would have no problem using deadly force to stop such an attack if I felt my life or physical well being was threatened.

You may have no problem at the time, but how you "felt" is only part of what will determine whether others will have a problem with it after the fact.

I would much rather explain it to a jury of twelve, than be carried by six.

You are assuming that you will have a favorable jury instruction that permits you to do that.

... more people are murdered with bare hands and feet than with rifles!

That is completely irrelevant to the outcome of the aftermath, and it does not enter into established law in any way.

A very enlightening story on the subject of the disparity of force defense is that of Larry Hickey. Some salient points:

• He was attacked by three unarmed people, and was losing consciousness before he drew and fired his firearm.
• He was unable to escape.
• He was charged, tried twice, spent the better part of three months in jail, and lost his personal fortune before he was finally released.
• The fact that he was armed and the attackers were not was the main issue that caused the jurors to not acquit him
• The tenor of some training material he had did not help in terms of determining mens rea; be careful about what you post on the Internet--it can have the same effect.
• The attackers successfully pursued civil damages; remember that the burden of proof is much lower than in the criminal case.
• This occurred in a "gun friendly" state with a "stand your ground" law.

See his sobering story here; bookmark and read it a couple of times.

Lest anyone assume otherwise, this is not the only case of this kind on recent record that should cause one to reconsider some of the simplistic views that we often see here on this subject. However, its enough reading for most people, and I'm not going to take the time to dredge up others.

 

[Cemo]

+1 on "We are not amused" response.

 

[Kleanbore]

Perhaps it would be helpful to take Post #2 and turn it around.

If you are a male, and you are not infirm, and if a person threatening you is not significantly larger or known by you to possess superior fighting skills, and you are not outnumbered, you would have little if any chance of prevailing in a defense of justification after having used deadly force against someone you did not have reason to believe to be armed.

Heck, it is unlikely that it would even be allowed to be treated as a self defense case.

And should that one unarmed attacker survive, which is likely, and testify that he had had no intention of killing you or inflicting crippling bodily harm or serious disfigurement, it would be your word against his in an already very bad situation.

 

[JR47]

And should that one unarmed attacker survive, which is likely, and testify that he had had no intention of killing you or inflicting crippling bodily harm or serious disfigurement, it would be your word against his in an already very bad situation.

Sorry, but that won't fly. If you are attacked without warning, you, as a reasonable and prudent man have absolutely no way of knowing to what ends the attacker will go to prevail. Truthfully, if the attacker weren't considering crippling you, at the minimum, how did he intend to prevail?

Forget the "possibility" of him being believed by a jury until after you have prevailed, by any means that you think necessary. To be quite honest, I have NEVER seen anyone claim such a thing that competent defense couldn't throw right back on the attacker.

You have no legal duty to be injured on the off chance that your attacker(s) might only want to deal you a minimal injury.

This is counter to logic, and case law.

 

[jcooper9099]

It is true that you can only judge an attacker's will by his or her actions. By attacking you they are asserting the intent to do you harm.

The circumstances are really what matters in any SD case. Blows that are likely to give a concussion are serious matters, but are part of a normal "fist fight". My personal view is do not participate in any exchanges of words when violence is an imminent threat, just avoid the situation. The person screaming at you looks foolish and will soon realize it and if they continue to violence your will not to participate needs to made clear. If you are hit with a punch, defend with a punch. If they are just yelling at you, let them yell and you can go home and laugh about it. If you can, just get away. You may have "stand your ground" on your side but think about if it is really worth it. Personally, I'd rather take a black eye than go on trial. I can always sue the person who gave me the black eye.

 

[Kleanbore]

Posted by JR47: Sorry, but that [should that one unarmed attacker survive, which is likely, and testify that he had had no intention of killing you or inflicting crippling bodily harm or serious disfigurement, it would be your word against his in an already very bad situation] won't fly. If you are attacked without warning, you, as a reasonable and prudent man have absolutely no way of knowing to what ends the attacker will go to prevail.

Truthfully, if the attacker weren't considering crippling you, at the minimum, how did he intend to prevail?

Your not knowing what he will do does not justify the use of deadly force. Nor does what he might be considering justify the use of deadly force. Nor is it likely that anyone will buy the argument that an attacker cannot prevail in physical battery without crippling you.

Your obligation will be to provide at least some evidence on each of the following: (1) you reasonably believed that the attacker had the ability and the opportunity to kill you or cause serious bodily harm; (2) you reasonably believed that you were in imminent jeopardy of being killed or seriously injured; and (3) that you had no alternative other than the use of deadly force.

Your inability to support a basis for reasonable belief that the attacker had been armed and the absence of a demonstrable disparity of force will undermine your defense very seriously. That is established law.

What he may have been considering and what you reasonably believed that he intended to do are two different things. Your ability to convince a court that he had actually intended to kill you, cripple you, destroy an organ, or inflict serious permanent disfigurement would be very much weakened by testimony to the effect that he intended to twist your arm or knock you down and take your wallet.

Prerequisite to your trying to do so is a favorable jury instruction that sets up a self defense trial.

Forget the "possibility" of him being believed by a jury until after you have prevailed, by any means that you think necessary.

"Whatever means you think necessary" would not cut it. Others will judge, on the basis of evidence provided by you, whether you had reason to believe that all the elements necessary to justify the force that you used were present, or whether the force that you used was excessive.

To be quite honest, I have NEVER seen anyone claim such a thing that competent defense couldn't throw right back on the attacker.

I have no comment on that.

You have no legal duty to be injured on the off chance that your attacker(s) might only want to deal you a minimal injury.

You have it backwards. You must be able to demonstrate a basis for a reasonable belief that the attacker would have undertaken to deal you a serious injury, that he had the ability to do so, and that you had no alternative to the action that you took.

This paper, written by an attorney for attorneys, is worth reading.

 

[Owen Sparks]

What some of you are not taking into consideration is the difference between voluntarily participating in a fight and being attacked without provocation.

Fighting is dangerous, even in a padded ring between highly conditioned athletes with rules, gloves and a referee. Even under those conditions there are several deaths every year in boxing. Outside on the pavement with no one to stop it after one fighter can no longer intelligently defend himself it can turn deadly. The pavement is after all a deadly weapon and it is really easy to use on a stunned victim. You cannot bet your life on the good intentions of your assailant to stop when he thinks you have had enough. Again, over TWICE as many people are murdered in the US each year with bare hands than with rifles.

Allowing a stranger to lay hands on you in malice can be a deadly mistake.

 

[Kleanbore]

Posted by Owen Sparks: What some of you are not taking into consideration is the difference between voluntarily participating in a fight and being attacked without provocation.

That has been brought up, but it is an important point. A self defense claim will not prevail in the event of mutual combat except under the rare circumstance in which the defendant can demonstrate rather convincingly that he or she attempted to break off combat and that the other party continued.

Again, over TWICE as many people are murdered in the US each year with bare hands than with rifles.

And again, that is completely irrelevant to a defense of justification for the use of deadly force against an unarmed individual.

Allowing a stranger to lay hands on you in malice can be a deadly mistake.

Unquestionably true, but for a fit male individual to resort to the use of deadly force, and in most jurisdictions even to the threat of deadly force, against an unarmed person can easily result in the loss of his fortune, his record, and his personal freedom.

There are alternatives, and it is a very good idea to avail oneself of one of them.

 

[Owen Sparks]

The average "fit male" has probably not been in a real fight since highschool and will become totaly unfit after just one good punch, kick in the crotch or thumb in the eye and will be at the mercy of the attacker.

Why should you have to play your attackers game?

 

[Shoobee]

I am coming back again over and over to my theory of shooting someone else in the foot first, and then backing away, so that he/they cannot follow you, very easily.

Never tried it, yet. But it is making more and more sense all the time.

I have stomped them on the foot, which made them limp really badly, and then backed away, and after that their attack was quickly over. Motorcycle boots work quite nicely for this.

 

[Loosedhorse]

will become totaly unfit after just one good punch, kick in the crotch or thumb in the eye and will be at the mercy of the attacker.

This is especially true if you get hit by a sucker punch--a completely unexpected, untelegraphed punch. After one of those, you could be completely unable to defend yourself--probably as good as dead.

So, in order to make sure you don't allow anyone to sucker punch you...you should shoot anyone who you don't think is about to attack you--because those are the folks that could really surprise you!

Hey, do whatever you want; understand you will have to explain why you shot someone to a jury. If you think your explanation of, "Well, if I didn't shoot him, he could have possibly maybe killed me with a single punch, even if I had tried to block it or get away" will fly, no one can prevent you from trying it.

Two things I know: having a gun in a fight doesn't mean you can't get killed; and shooting someone in self-defense does not mean you can't be convicted. So I tend to spend more time figuring out how to stay out of fights than figuring whether I can shoot someone if I think he's going to punch me.

I have stomped them on the foot, which made them limp really badly, and then backed away and after that their attack was quickly over.

Since that worked...why exactly do you want to switch to shooting them?

 

[Odinforever2000]

Personally, If I've drawn my gun, shooting a person anywhere but center of mass doesn't make much sense.Shooting an assailant in the foot may look odd to a jury of your peers, especially since it means you had the extra time to consider at hat shot,which could lead to a jury not believing that you felt threatened.. I mean..you felt threatened enough to draw your gun and you "chose" to shoot at a their foot (smaller target to shoot and it moves)? On top of that fight or flight syndrome which removes all your fine motor skills would make that a difficult target. You also have to consider where your bullet may go after its struck that persons foot and the possibility if they died and you were nowhere to be found.

I personally have seen people miss at the 5 yrd line 15rnds on a standard torso target.

Basically..If you draw a gun is you must be willing to use it in a manner consistent with "self-defense".

 

[Odinforever2000]

I tend to spend more time figuring out how to stay out of fights than figuring whether I can shoot someone if I think he's going to punch me.

Exactly

 

[Cesiumsponge]

What we really have here are two schools of thought.

The first being a line of thought of what is acceptable, which has been established by experts, expert witnesses, case law and rulings, and various laws across the jurisdictions across the land which dates back to common law and the doctrine of the reasonable man. This is a good way to judge what is acceptable and what is unacceptable.

The other is personal opinion which can vary wildly. I can tell you one holds more water than the other in a court of law. I see a lot of people seem ready to bring lethal force into an assault situation on the basis of a remote "what if?" There are more levels of forces between pacifism and lethal force and you are lawfully bound to meet force on equal force, and articulate your actions are that of a reasonable and prudent individual. I would suggest folks educate themselves before making decisions in the real world. I've had this discussion in the past on THR and some folks earnestly believe they can shoot someone because they might get punched. I'm sure they've convinced themselves its okay to counter assault by escalating it to lethal force, but you'll have to convince police, a judge, and a jury. Luckily this line of thought holds little bearing with reality or we'd have justifiable shoots every time someone spilled a beer on someone or stepped on their toes.

You're not going to get hit by a completely untelegraphed sucker punch out of the blue with enough force to render you unconscious, from an assailant out of left field with no other precursors or evidence of conflict escalation unless you're completely oblivious to your surroundings and prancing about in condition white and meet with a subset of criminal that will simply jump into physical confrontation without "asking you nicely" first to avoid risk to their well-being. A criminal doesn't care about your safety but they don't particularly like to get unecessarily dirty or injured. That is a boogeyman and I hope your defense has more articulate exculpatory evidence. I've trained under one of the individuals who served on the defense team of the aforementioned Larry Hickey case, as well as talk with, and keep myself familiar with several well-known expert witnesses in the industry. I really suggest folks do some reading to get a better idea of the law as it exists, not as they perceive it exists. I had a lot of misconceptions too until I started realizing what I thought, and what is, are two different things.

 

[henschman]

The one and only question that matters when it comes to the application of deadly force in self defense is this: WAS THE DEFENDANT REASONABLY IN FEAR OF DEATH OR SERIOUS BODILY INJURY AT THE TIME HE USED DEADLY FORCE?

Those lists of fact patterns are nothing but supposition. In reality, you have no idea how a jury will rule. You can be sure that they will not see any lists of the sort that Kleanbore posted. The only thing they will see is a statement of the law they are required to apply the facts to, and it will be more or less verbatim to the question I posed above.

The jury will be instructed that they can take into account all evidence presented at trial in answering that question. Naturally a good defense attorney will introduce evidence of any sort of disparity of gender, size, physical ability, etc., but none is legally required in order to successfully maintain this defense. A 280 lb. body builder who was attacked by a scrawny little 120 lb. punk can successfully assert self defense, as long as he shows that the attacker put him reasonably in fear death or serious bodily injury. The odds of that fact pattern occurring nonwithstanding, the bodybuilder is just as entitled to the defense as anyone if he proves its existence to the trier of fact (the jury).

Also, when a man is charged with a homicide, the only one who gets to decide whether it is "a self-defense case" is the Defendant. He has the right to claim any legal defenses that he wishes to the crime he is charged with, and to marshall any admissable evidence in his defense.

 

[Cesiumsponge]

The key points that people tend to ignore or gloss over are REASONABLE and AT THE TIME (or immediate). A frightening amount of folks I've interacted with simply believe all that is required is "a fear of".

 

[Kleanbore]

Posted by henschman: The one and only question that matters when it comes to the application of deadly force in self defense is this: WAS THE DEFENDANT REASONABLY IN FEAR OF DEATH OR SERIOUS BODILY INJURY AT THE TIME HE USED DEADLY FORCE?

True fact. And that question will be decided by a jury on the basis of the evidence.

The operative word is reasonably. It has little to do with the threshold of trepidation of the defendant, and everything to do with what a reasonable person, knowing what the defendant knew at the time, would have believed.

Those lists of fact patterns are nothing but supposition. In reality, you have no idea how a jury will rule. You can be sure that they will not see any lists of the sort that Kleanbore posted. The only thing they will see is a statement of the law they are required to apply the facts to, and it will be more or less verbatim to the question I posed above.

That is almost true. They will also hear expert witnesses explain how an attacker is likely to be able to cause death or serious bodily harm--or not. The list is a fairly reliable description of what may (yes, may) succeed. The jury, of course, will ultimately decide. But absent a weapon (or perhaps a furtive motion giving rise to the belief of the existence of a weapon) or clearly articulable indications of a disparity of force, the defendant's case will be questionable at best.

The jury will be instructed that they can take into account all evidence presented at trial in answering that question.

True fact. But the defendant--and that is what he or she is, at that point--must introduce some evidence supporting a claim of self defense.

Naturally a good defense attorney will introduce evidence of any sort of disparity of gender, size, physical ability, etc., but none is legally required in order to successfully maintain this defense.

The jury will have been instructed to decide, among other things, whether the defendant, knowing what he or she knew at the time, had been reasonable in believing that the alleged attacker had had the ability to cause death or serious bodily harm. That will boil down either to a weapon (an indisputable indication of such ability) or to disparity of force (often not so great).

A 280 lb. body builder who was attacked by a scrawny little 120 lb. punk can successfully assert self defense, as long as he shows that the attacker put him reasonably in fear death or serious bodily injury.

Theoretically true, but fat chance, as they say.

The odds of that fact pattern occurring nonwithstanding, the bodybuilder is just as entitled to the defense as anyone if he proves its existence to the trier of fact (the jury).

Of course, but the odds will likely enable one to predict the outcome rather well in most cases.

Also, when a man is charged with a homicide, the only one who gets to decide whether it is "a self-defense case" is the Defendant. He has the right to claim any legal defenses that he wishes to the crime he is charged with, and to marshall any admissable evidence in his defense.

He has the right, provided that he presents sufficient evidence that he acted in self defense.

I am quite sure that the poster, as a criminal defense attorney, understands all of the above quite well.

 

[gpjoe]

I've been thinking about this in light of the Florida situation, and have been wondering:

A "legal expert" on one of the cable news channels said immediately after charges were filed in the case "Well, if Zimmerman started the fight and then found out he was losing, that doesn't justify the used of deadly force".

Well, we don't know what happened but imagine any person in a similar situation, armed, on a neighborhood watch, where he/she may have confronted someone and questioned them. Suppose that the person being questioned became agitated or frightened and attacked the armed individual. In this scenario the weapon has not yet been drawn and the attacker does not know about it. If the armed individual were indeed "losing the fight", could he not claim that he feared being disarmed and killed with his own gun?...does this not meet the requirement of fearing for one's life?

 

[Kleanbore]

Posted by gpjoe: If the armed individual were indeed "losing the fight", could he not claim that he feared being disarmed and killed with his own gun?...does this not meet the requirement of fearing for one's life?

If you don't mind, lets take "losing the fight " out of the discussion and concentrate just on the lawful defender with a gun being overcome by unarmed attackers and fearing losing his firearm.

That's what happened in the Larry Hickey case, and whether any of us here think it reasonable or not, he was unable to gain acquittal in either of two trials.

Again, reasonable is the operative word, and someone else determines that.