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

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gvf said:
....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]...
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And we've discussed on any number of occasions why this sort of analysis is meaningless and useless.

For example:

  • In this post:
    Frank Ettin said:
    PTMCCAIN said:
    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.
    Click to expand...
    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.

    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 (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....
    Click to expand...
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  • This post by another lawyer:
    Bartholomew Roberts said:
    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.
    Click to expand...

  • This post:
    Frank Ettin said:
    Byrd666 said:
    ...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...
    Click to expand...
    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.
    Click to expand...
 
Kleanbore said:
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:
  1. 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
  2. a shot to a leg artery can be expected to cause death more quickly than many shots to mid-torso.
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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.
 
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"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.
 
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.
 
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.
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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.
 
Post 19; GZ case.....

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
 
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.
 
Frank Ettin said:
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):
    ​



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.
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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,
Click to expand...
 
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gvf said:
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?....
Click to expand...


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.
 
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.
 
gun_with_a_view said:
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.
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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"
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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.
 
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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.
 
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).
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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 Justification
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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.
 
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?
 
gvf said:
...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."....
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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...
Click to expand...

gvf said:
...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."...
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And here you did not quote the law. You quoted a commentary. The exact and complete statement in that commentary 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."...
Click to expand...

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​
...​
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gvf said:
...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....
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Really now? What complete drivel. Understanding the law is obviously not a matter of common knowledge. You certainly don't understand it.
 
<<<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.
 
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.
 
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.
 
Kleanbore said:
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.
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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.)
 
Frank Ettin said:
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 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.
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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,
 
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Kleanbore said:
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.
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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.
 
69248 said:
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.
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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.
Click to expand...
 
gvf said:
I'm afraid I do. At least regarding the difference between Manslaughter and Murder....
Click to expand...
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.
 
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