This is from the latest of Andrew Branca's Cases of the Week blog posts.
A little guy who worked in a concrete factory started a fight with much, much bigger guy at work.
That was DUMB.
Things unfolded as might have been expected. The big guy got the better of the little guy and was beating the bejeesus out of him.
The little guy's brother, who had witnessed everything from the outset, grabbed something and went around behind the big guy and beaned him.
That might have been understandable, but it was a criminal act. Read on.
It was DUMB
The brother was arrested and charged.
He requested a bench trial, in which the judge acted as judge, interpreting the law, and as jury, judging the facts of the case.
The brother's defense was that he had used force in the defense of a third party.
That can be lawful ...
But the judge said that, because the defendant struck his victim from behind, the act was not lawful.
That was exceptionally DUMB.
The brother was convicted.
He appealed, arguing that the judge, in his role as judge, committed reversible error by ruling that a blow from behind was not lawful.
The appeals court agreed that the ruling had been incorrect.
BUT the appeals court properly ruled that, as the instigator of the confrontation, the little guy would not have been lawfully privileged to defend himself.
For that reason, the brother was not privileged to claim lawful justification in having come to the defense of the little guy.
That's pretty basic.
Finally, there was something that was not DUMB: the ruling of the trial court was upheld.
The ruling was handed down last week.
The brother received a thirty-day suspended sentence. (!)
None of this should have happened.
In many states, a person may lawfully use reasonable force to defend a third party, provided that he has an objective basis for reasonably believing that the third person would be privileged to use force in the defense of himself.
"She looked like an innocent victim" might not cut it at all, though it once worked for Geo. Patton. Things are not always as they appear.
In a few states, if that belief later proves erroneous, the goose of the person who came to the aid of the third party is cooked.
It is particularly imprudent to step into a confrontation unless you know what has already occurred.
Since that's a tall order, it is usually best to elect to defend only people whom you know.
For those who might be visualizing Dirty Harry stuff ("Smith, Wesson, and me"), "reasonable force" may involve shoving a person, grabbing an arm, or using pepper spray.
Under some circumstances, deadly force may be justified. That can include using an aluminum bat or something heavy.
Beyond criminal liability, there is also the risk of civil liability, where the defendant does not enjoy the benefit of a "beyond all reasonable doubt" requirement.
Let's be careful out there!
Going back to the concrete factory: one would hope that, had the beating appeared to have become life threatening, the trial court might have been more sympathetic to the defendant.
Would that have been more likely with a jury trial? I wonder.
