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In Search of the Reasonable and Prudent Person

Discussion in 'Legal' started by luzyfuerza, Aug 3, 2018.

  1. luzyfuerza

    luzyfuerza Member

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    Citizens, police, prosecutors, judges, and juries, among others, must use a "reasonable and prudent person" test to determine whether or not a use of deadly force is contrary to or permitted by law.

    Because reasonableness reflects a consensus among members of society, then if society's opinions change, the application of the law can also change. Likewise, if the consensus about what is reasonable differs between two jurisdictions, then the application of the same law in those jurisdictions can also be different.

    Obviously, certain inviolate standards limit drift and differences. But even these change once in a while (Civil Rights Act of 1964, Heller, McDonald, Terry, castle doctrine laws anyone?).



    I'm curious to know if you believe that widespread access to videos of violent crimes, self-defense shootings, and police use of force might lead to changes in society's consensus regarding reasonable use of force.

    1) Has your opinion of what is reasonable use of force changed as you've watched these videos?

    2) Do you believe that other members of society are also watching these recordings, and that their perceptions of what is reasonable are also changing?

    3) Do you think that easy access to videos from all over the country is likely to reduce variation between jurisdictions regarding reasonable use of force?


    Please don't allow this thread to stray into criticism of police actions. There are lessons that citizens can learn regarding use of force from videos of officer-involved shootings, but that's probably about as far as it should go.
     
  2. Hunter86004

    Hunter86004 Member

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    Under Arizona law there is a presumed fear that justifies the use of deadly physical force under several conditions.

    13-419. Presumptions; defense of a residential structure or occupied vehicle; exceptions; definitions

    A. A person is presumed to reasonably believe that the threat or use of physical force or deadly force is immediately necessary for the purposes of sections 13-404 through 13-408, section 13-418 and section 13-421 if the person knows or has reason to believe that the person against whom physical force or deadly force is threatened or used is unlawfully or forcefully entering or has unlawfully or forcefully entered and is present in the person's residential structure or occupied vehicle.

    B. For the purposes of sections 13-404 through 13-408, section 13-418 and section 13-421, a person who is unlawfully or forcefully entering or who has unlawfully or forcefully entered and is present in a residential structure or occupied vehicle is presumed to pose an imminent threat of unlawful deadly harm to any person who is in the residential structure or occupied vehicle.

    C. The presumptions in subsections A and B of this section do not apply if:

    1. The person against whom physical force or deadly physical force was threatened or used has the right to be in or is a lawful resident of the residential structure or occupied vehicle, including an owner, lessee, invitee or titleholder, and an order of protection or injunction against harassment has not been filed against that person.

    2. The person against whom physical force or deadly physical force was threatened or used is the parent or grandparent, or has legal custody or guardianship, of a child or grandchild sought to be removed from the residential structure or occupied vehicle.

    3. The person who threatens or uses physical force or deadly physical force is engaged in an unlawful activity or is using the residential structure or occupied vehicle to further an unlawful activity.

    4. The person against whom physical force or deadly physical force was threatened or used is a law enforcement officer who enters or attempts to enter a residential structure or occupied vehicle in the performance of official duties.

    D. For the purposes of this section:

    1. "Residential structure" has the same meaning prescribed in section 13-1501.

    2. "Vehicle" means a conveyance of any kind, whether or not motorized, that is designed to transport persons or property.
     
  3. Kleanbore

    Kleanbore Moderator

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    Quite a number of states have very similar laws.

    Such a presumption is always rebuttable.

    But that does not address the original question.

    It does not matter who may have watched what videos.

    The issue us what another person would have done in similar circumstances, knowing what the actor knew at the time.

    The triers of fact may be guided by expert witness testimony about the realties of violent, tumultuous deadly force encounters,
     
  4. Good Ol' Boy

    Good Ol' Boy Member

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    While not very legal my answer is that I wholeheartedly think societies perception on what is reasonable, much less right or wrong, is absolutely changing.

    Being judged by a group of my "peers" sounds scary as hell in this day and age.
     
  5. WestKentucky

    WestKentucky Member

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    It’s a sad reality that our legal system is built largely upon common sense and reasonable judgement, the two items which stand out as being grossly eroded tenets of societal normalcy.

    What is good is that racial and sexist bias is greatly diminished as opposed to past decades.

    To opine directly on the topic of the reasonable and prudent person, you have to essentially weigh out society and establish where the point is that the vast majority of people would agree that X action is acceptable where Y action is happening to prevent Z from occurring. I think it’s a fools errand to try to weigh it all out and try to reasonably justify what the reasonable and prudent person would feel is that fine line establishing legal boundary.

    This topic does represent a HUGE chunk of the beauty of democracy because we as citizens are given the choice of who to put in a position of power to decide these things for us. It is the single most important reason to vote because your elected officials appoint your judges who largely control the boundaries in which law enforcement operates, but also where the line is drawn as what is reasonable. Do you want the judge who doesn’t think it’s reasonable to employ self defense until you have already been seriously injured? Do you want the judge who automatically says that use of force by police is OK? Do you want the judge who understands that a drugged up miscreant chopping his way into your home with an axe probably isn’t doing so to help you get firewood ready for the winter?
     
  6. Twiki357

    Twiki357 Member

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    I think the perception of what is or is not reasonable has changed considerably to many people. And that change goes in both directions depending on the circumstances and the individual person. Unfortunately, what many individuals consider reasonable now days seems to frequently be dependent on the individual’s race and the races of those involved in a use of force. And it does not matter if that use of force is by a citizen or law enforcement officer.

    Personally, I have seen many body or dash cam videos and those taken by bystanders where it appears that deadly force could or should have been used, but was not. Then there are the many “news worthy” instances when deadly force was used, but did not appear to be appropriate, at least according to Monday morning quarterbacks.

    In general, I don’t think that society’s perception has changed overall. But, rather it is dependent on the circumstances, the amount and type of news coverage and the perception of each individual.
     
  7. 1911 guy

    1911 guy Member

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    "Reasonable" varies widely based on a persons' perception and previous experience.
    I agree, also, that society is becoming disconnected from reality and this results in reasonable, rational and intellect driven actions being outside the norm. My generally low opinion of humanity is being further debased.
     
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  8. Spats McGee

    Spats McGee Moderator

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    I have some reservations on whether this is really an appropriate topic for the Legal forum, but I'll let it run for now. The Reasonable Man standard can be found in just about every area of law. Reasonable belief, driving in a manner reasonable under the circumstances, taking reasonable measures . . . . My torts professor (lo, these many years ago) once said, "Anyone else here ever notice that the Reasonable Man is never unreasonable? He never speeds, he never drinks too much, he never does anything unreasonable. Isn't that unreasonable, in and of itself?"

    In any event, what is "reasonable" under the circumstances is usually a matter for the jury. As its perceptions of "reasonable" change, so will the legal standards attached to it.
     
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  9. Frank Ettin

    Frank Ettin Moderator

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    And the jury will not be deliberating in a vacuum. They will have heard evidence, often including evidence bearing on why an action taken by the defendant was or was not reasonable. They will have heard arguments by the lawyers on each side, and they will have been instructed in the law by the judge.

    But also, as is often the case, to understand the meaning, application, and evolution of a legal principle, like the reasonable person standard as used in the law, one needs to do some actual research instead of just rely on his own thoughts and personal, private conceptions. So for those interested in this subject, I'll offer the following reading list to help them get started:

     
  10. luzyfuerza

    luzyfuerza Member

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    It was probably rude of me to start this discussion without providing an example of how my thinking of what is reasonable has been affected by viewing videos of armed robberies, shootings, police use of force, etc.

    I started watching these things in an effort to identify tactics and skills that I needed to develop should I ever be faced with a violent attack. Practice was getting bland, and I wanted to make the scenarios more real. It turns out that there are lots of tactical lessons that can be gathered from the videos that I've seen, and this has added a lot more realism to my practice.

    I was surprised, though, how what I thought was reasonable was changed by viewing the video records of those events.

    For example, over the years, I have heard several police officials recommend that victims of armed robberies should generally comply with the robber's demands: the "give them what they want and they'll probably leave you unharmed" approach. I still hear statements like this today. For these officials, compliance might be a reasonable course of action. For a long time, I took them at their word. However, as I've seen video records of armed robberies where the victim was stabbed, beaten, or shot with no (or at least no visible) provocation, my perception of what is a reasonable response has changed. For me, now, it is reasonable to comply with armed robbers' demands, at least until they give me an opportunity to control their weapons or to counter-ambush them.

    Society went through a similar evolution regarding what was reasonable in the case of rape. Those of us who are old enough probably remember when police often advised compliance with rapists' demands; "lean back, let him do his thing, and its unlikely that he'll kill or maim you". Thankfully, empowered women decided that "taking it" wasn't reasonable, and that fighting back using every means available was how they were going to respond. Funny, I don't hear too many police tell women to "take" rape lying down any more.

    Have video records of violent events changed your thoughts of what is reasonable use of force in the face of a violent attack?
     
  11. luzyfuerza

    luzyfuerza Member

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    Frank, thanks for the references. I'm looking forward to going through them.

    I agree that juries should consider all of the facts and arguments presented at trial:

    Those jurors who won't do this, or who demonstrate overt bias for or against the defendant, are often weeded out during voir dire.

    But all juries will weigh these facts and the law in the light of their collective opinions, thoughts, training, and experiences. Prosecutors, police, judges, etc. do too. Many cases never make it to trial, after all.


    The individuals who administer the law (including citizens who sit on juries) aren't automatons. We all apply own own standards of reasonableness, our opinions can change over time, and the sum of these opinions (society's consensus) does vary between communities. Clear visual evidence of what has really happened during violent attacks has changed my sense of what is reasonable. I'm just wondering if the THR community believes that the explosion in the availability of this kind of material is also likely to change others' views, too.
     
  12. Old Dog

    Old Dog Member

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    Quite probably so, and not always in a good way.

    Only those who are present, and feel threatened, in a given situation, can articulate how and why they felt threatened. Being one who routinely reviews use-of-force videos (professionally), I know how easy it is to criticize the actions of those involved. It is often difficult to apply the "reasonable officer" standard, especially because sometimes when one has the 360-degree view of events, one still cannot reliably and 100% of the time comprehend what went through the mind of the individual facing the threat. And quite often, video rarely conveys all the little nuances of an incident, from small, barely perceptible movements to non-verbal threats and cues.
     
  13. Art Eatman

    Art Eatman Administrator Staff Member

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    If someone is running at you with a club, axe or knife, or is pointing a gun at you, is it reasonable to believe you're in danger of serious bodily harm or death?
     
  14. luzyfuerza

    luzyfuerza Member

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    There is no question that for most people this
    would constitute a reasonable danger of immediate serious bodily harm or death. In math, this is what we call a trivial solution.


    There are less-clear situations, though, that we could consider. How about if someone is coming at you with a plastic snow shovel, starting from less than 21 feet away?

    These videos are of an attack on an officer, but the lessons learned regarding reasonableness might also apply to situations involving individual citizens.




    A third video apparently exists and is in the hands of police, but unfortunately does not appear in the public domain.

    But the rest of the story is described here
    https://archive.sltrib.com/article.php?id=2202371&itype=CMSID#gallery-carousel-446996
    and here.
    https://www.deseretnews.com/article...ing-ex-chief-denies-man-was-shot-in-back.html


    It appears that the officer didn't retrieve his firearm and shoot until after numerous blows from the snow shovel and 10-15 seconds of hand-to-hand fighting. In THR members' opinions, was it reasonable for the officer to use deadly force after the first swing of the snow shovel? Or later on, after 7 to 10 blows from the shovel? Or only after Barker apparently pulled on Officer Taylor's gun?

    The District Attorney determined that the officer's response to this attack was reasonable. If a male citizen in the same physical condition as the officer responded in the same way to an identical situation, do you believe that the citizen's response would also be considered to be reasonable?
     
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