cassandrasdaddy
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One thing I know for sure is that I'm not going to hire Mr. Fish's incompetent boob of a lawyer!
in what way was he/she incompetent?
in what way was he/she incompetent?
Disparity Of Force
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GregGry
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I am a LEO and I have full CCW powers in the entire state. I have 50 credits dealing just with law, use of force, rules of evidence, along with more then a few years on the force. I work with lawyers, DAs, and court systems. Not only do I have to take my saftey into consideration, but my legal standing. What is your expertise on the use of force?
I can't shoot a unarmed man unless disparity of force is on my side, and neither can you. That is if you want to stay out of jail. I fail to see how someone can't grasp the concept that just because someone that is threating you with their fists, doesn't mean you can shoot them. Are they built like mike tyson, or are then a anorexic person that couldn't give you a bruise if they tried? Assume both said they were going to kick your butt, and were dead serious. It seems it doesn't matter, you would shoot either.
Good luck being on the stand with the only defense is that you were afraid for your life. As evidence after evidence gets stacked up on why your life wasn't in danger in the least (all the time your sitting on the stand with the opinion your life was in danger). Thats the unfortunate part of self defense that most classes never teach, the double standard of reasonableness. You can think anything you want, but if others don't think what you chose to do is reasonable, then your going away. Any statements you make that ammount to "they could have been a martial arts master, they could have had 10 knives, 10 guns, had I not pulled the trigger I could have been dropped by that unarmed person" will just show to a jury that your unreasonble. After all unless you saw signs of any of that prior to pulling the trigger, it never existed as far as the court is concerned. You can't make up things to try to use as evidence of disparity of force, and everything that you didn't see or that didn't happen is as good as fairy dust in a trial.
cassandrasdaddy
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theres some irony here vis a vis screen names but i can't high road it pity that
GregGry
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Explains what?
If anyone doesn't believe what I have said, then I would suggest you take law classes, sit and hear actual court cases, and talk with people who have had to defend themselves.
The fact is one persons fear is not enough to stay out of prison, because in the end your going to have to convince a jury you made the right choice. Don't even think for a moment that a shoot involving a armed person shooting a unarmed person wont be brought to trial. There are way to many variables that aren't clear to write it off.
Cross examination is the pretty much the same everywhere in the U. S.Bubba613 said:
GregGry never said that. That's not what I was taught either. And that's not the case.Bubba613 said:
But the point is that you will still have to convince a jury that a reasonable person in the same situation would fear for his life. The test is based on a reasonable person -- not your subjective, personal fear. That's a tough sell if you are bigger than the guy you shot.
There's no free pass here. It's all very situation specific, and the factors are cumulative. So if you're basing your justification on disparity of force, the older, sicker, weaker, smaller you are than your assailant, the more likely a jury will be to side with you. But the younger, stronger, bigger, healthier you are than your assailant, the less likely a jury will be to take your side. That's just reality.
So no one is saying that a little guy can't hurt you. But if you're attacked by an unarmed little guy, and you have a gun, it's probably not a bad idea to have a Plan B.
mljdeckard
Member
Gregry is right. If you want your eyes opened, take some classes. All kinds of stuff you thought you knew is flat wrong. even if you heard it from a cop. You have to take it upon yourself to learn the law and be responsible for it. When I started studying criminal justice at a community college, my professor was a cop who became a prosecutor who became a judge who retired and worked defense law. There is good info if you bother to go get it.
divemedic
Member
Again, I would like to point out that the law does not say that you must be in fear for your life or of receiving serious bodily harm to employ deadly force. The law says you must be in REASONABLE fear of life or serious bodily harm. That one word makes a HUGE difference.
mljdeckard
Member
Bur 'reasonable', being a subjective term, must be estimated with a STRONG degree of caution.
You're right. What is reasonable to one person isn't to another. There are a million factors that will go into whether a course of action was reasonable or not. I think starting with the mindset of "the second to last thing I want to do is shoot someone" (the last being to get shot yourself) is a good idea.
divemedic
Member
"Reasonable" has actually been pretty well established, and applies to far more than just self defense and use of force.
deanf
Member
Read Defending the Self Defense Case by Lisa J. Steele.
mljdeckard said:
In the law, the standard of reasonableness is not all that subjective. The legal measure of whether an action or perception is reasonable is often stated as based on "a reasonable and prudent person in like circumstances and with like knowledge" or words to that effect.Bubba613 said:
That's still pretty subjective.
Is it reasonable and prudent to go around with a Glock 19 with 2 extra mags, folding knife, and maybe kel tec for backup, for the average suburban Joe?
I would say no.
But there are probably plenty of people here who think that's perfectly OK. Maybe even under-armed.
Is it reasonable and prudent to go around with a Glock 19 with 2 extra mags, folding knife, and maybe kel tec for backup, for the average suburban Joe?
I would say no.
But there are probably plenty of people here who think that's perfectly OK. Maybe even under-armed.
And he very well might be on your jury.Bubba613 said:
divemedic
Member
You guys are thinking like gunnies. Reasonable will be judged by Suzie Soccermom. The kind of people who freak out when they find out you carried a gun to Disneyworld. The kind who would freak out to know that you have a gun while in line behind her at McDonald's.
People who carry a gun on a regular basis are in a very small minority. Even if one somehow got a summons on the day of your trial, the odds of them making it through voir dire are slim indeed. I would not depend on a gunnie in my jury as my legal defense.
People who carry a gun on a regular basis are in a very small minority. Even if one somehow got a summons on the day of your trial, the odds of them making it through voir dire are slim indeed. I would not depend on a gunnie in my jury as my legal defense.
From divemedic:
Fiddletown has made that point before in similar discussions. People have said "any gun person on the jury would vote to acquit" and Fiddletown has pointed out that such people would be most unlikely to be seated on a jury in a case involving a shooting.
Massad Ayoob wrote of a case in which the defendant had a loaded Model 1911 with two loaded spare magazines. The armament did become an issue, but as an expert witness, Mas explained to the jury that the use of two extra magazines was required in the kind of competition shooting in which the shooter, a veteran who had carried a 1911 while in the service, routinely engaged. The defendant prevailed.
I personally would not like to have to explain why I was carrying a Glock with two extra magazines, a back-up gun, and a folding knife to a jury in an area in which the idea of concealed carry alone raises alarm in more than half of the population.
Fiddletown has made that point before in similar discussions. People have said "any gun person on the jury would vote to acquit" and Fiddletown has pointed out that such people would be most unlikely to be seated on a jury in a case involving a shooting.
Massad Ayoob wrote of a case in which the defendant had a loaded Model 1911 with two loaded spare magazines. The armament did become an issue, but as an expert witness, Mas explained to the jury that the use of two extra magazines was required in the kind of competition shooting in which the shooter, a veteran who had carried a 1911 while in the service, routinely engaged. The defendant prevailed.
I personally would not like to have to explain why I was carrying a Glock with two extra magazines, a back-up gun, and a folding knife to a jury in an area in which the idea of concealed carry alone raises alarm in more than half of the population.
I wonder how you figure that, but whatever.Bubba613 said:
GregGry
Member
It would be unlikely that the folding knife, back up gun, or anything else the person was carrying will be allowed into evidence, (therefore you should never know about it when you make your decision). The fact you had 20 other weapons on you doesn't deal with the reason you are in court in the first place.
I see a trend with you basing your judgements on your own opinions and fears, and not on facts. 1 gun and 46 rounds of ammo isn't that significant, most police officers are at at least at that or more. Whats the difference between 10 rounds or 46? More rounds doesn't make a self defense shoot good or bad. Many firearms come with 2 or 3 magazines, if you can carry them why wouldn't you? Most people probably wouldn't carry 3 full mags (1 in the gun 2 on them) because that is a lot of weight to be lugging around.
When there is no law regarding the quantity of ammo, caliber of your weapon, or how many weapons you carry, there is no standard of reasonableness (Regarding law) that applies. When there are restrictions they are pretty clear cut and there isn't going to be much left for the reasonable standard. However, how one uses their firearm is open to the reasonable standard, which helps keep people accountable for using deadly force against other people that posed no legit threat to their life. That is unless its legal to use deadly force against someone that (given the circumstances up until one pulled the trigger) did not put them at a substantial danger of being killed or of great bodily harm.
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From GrgGry:
I cannot offer a legal opinion, but I do not think I would rely on that. If in the circumstances at hand the prosecution's case depends on establishing in the minds of the jurors that the defendant was predisposed to shoot someone at the time of the shooting, I should think the judge might well admit that information as relevant.
If the question were to simply hinge simply on whether the defendant had reason to believe that he was really in imminent danger at the time of the shooting, and/or on whether he should have retreated or had used excessive force, your point would be well taken, but absent any witnesses, or any evidence that the victim had even approached the defendant, I should think that the judge would agree that the defendant's state of mind at the time of the homicide would be very relevant indeed.
The judge will most certainly instruct the jury to base its decision on the evidence and the law, but in a trial in which there are few facts in evidence other than the fact of the shooting, and in which the defendant's case is dependent almost entirely upon his own testimony, the jurors' opinions and fears may be more determinative than they should be. How about the juror who was concerned about the choice of ammunition in the Fish case?
I cannot offer a legal opinion, but I do not think I would rely on that. If in the circumstances at hand the prosecution's case depends on establishing in the minds of the jurors that the defendant was predisposed to shoot someone at the time of the shooting, I should think the judge might well admit that information as relevant.
If the question were to simply hinge simply on whether the defendant had reason to believe that he was really in imminent danger at the time of the shooting, and/or on whether he should have retreated or had used excessive force, your point would be well taken, but absent any witnesses, or any evidence that the victim had even approached the defendant, I should think that the judge would agree that the defendant's state of mind at the time of the homicide would be very relevant indeed.
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The judge will most certainly instruct the jury to base its decision on the evidence and the law, but in a trial in which there are few facts in evidence other than the fact of the shooting, and in which the defendant's case is dependent almost entirely upon his own testimony, the jurors' opinions and fears may be more determinative than they should be. How about the juror who was concerned about the choice of ammunition in the Fish case?
Art Eatman
Moderator In Memoriam
A general comment, from reading through this thread: State laws vary a lot as to what's allowable as self-defense behavior and what is not. Some states have castle-doctrine attitudes and others have the duty-to-retreat attitudes built into their legal codes.
Then you have the attitudes of "sub-cultures" as to such things as "reasonable". What may be seen as reasonable in a rural area might not be seen that way in some cities. (From some jury experience of my own.)
So, keep in mind that some of the points made here could well be correct in one state but not correct in another...
Art
Then you have the attitudes of "sub-cultures" as to such things as "reasonable". What may be seen as reasonable in a rural area might not be seen that way in some cities. (From some jury experience of my own.)
So, keep in mind that some of the points made here could well be correct in one state but not correct in another...
Art
divemedic
Member
Your fears, your state of mind, and to what extent those were reasonable are very relevant to a self defense shooting situation. Remember, in order to use force against another, you must be in reasonable fear that the same level of force will imminently and unlawfully be used against you.
cassandrasdaddy
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Your fears, your state of mind, and to what extent those were reasonable are very relevant to a self defense shooting situation. Remember, in order to use force against another, you must be in reasonable fear that the same level of force will imminently and unlawfully be used against you.
and you gotta be able to sell that to a jury
and you gotta be able to sell that to a jury
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