Derry 1946
Member
- Joined
- Jun 27, 2011
- Messages
- 516
Thanks for the correction, the explanation of the difference between a "mitigating factor" and a "justification", and the kind words.
My pleasure.
Thanks for the correction, the explanation of the difference between a "mitigating factor" and a "justification", and the kind words.
Derry 1946 said:...Three examples: People v. Padgett, People v. Huntley, People v. Steele, all of NY.
...Ordinarily, the possibility of the defense would not appear until injected by the defendant (see, e.g., People v. Sandgren, 302 N.Y. 331) but, here, the prosecution's case, viewed separately, warrants the requested charge. The People's eyewitnesses testified that Thompson possessed the knife, and the assistant district attorney, with commendable candor, frankly admitted that the complaining witness was the initial aggressor. Consequently, a jury could find that defendant reasonably believed that Thompson was "using or about to use unlawful deadly physical force" (revised Penal Law, § 35.15, subd. 1, par. [a]) at the time she shot him.....
...the question remains whether the alibi defense precludes the requested charge. We have recognized that the jury may believe portions of both the defense and prosecution evidence (People v. Asan, supra, at p. 530). Since a jury might disbelieve the alibi and still find, on the prosecution's evidence, that defendant acted justifiably, the prosecution claim of inconsistent defenses is not a bar to the charge requested. ....
... According to Huntley's version of the episode, Simmons had approached him with a knife and demanded his money. Further, Huntley testified that he broke away and ran across the street pursued by Simmons, still holding his knife, and that it was during the ensuing scuffle that the knife inadvertently went into Simmons. Thus, if the jury believed defendant's version of the event, it could have found that he was justified in using force to thwart an attempted armed robbery and the court's failure to provide that charge was reversible error ...
...[Defendant] testified that he and his friends were telling jokes and having a good time at the bar when they were informed by the bartender that their presence was no longer welcome. The trio attempted to leave by what turned out to be the emergency exit door. The alarm went off, causing the bar owner to verbally abuse the defendant. After he reset the alarm, the owner threatened defendant, who became frightened. Defendant, believing the owner was about to hit him, tried to exit through the emergency door. He pushed the frame of the door hard, and the glass shattered, but he stated that he neither pushed on nor punched the glass. An altercation ensued, joined in by others in the bar.
Defendant requested that the court charge the jury on the defense of justification as being applicable to the four assault charges as well as the criminal mischief charge. The trial court instructed the jury that justification was a defense to the assault charges, but refused such an instruction with regard to the charge of criminal mischief. The court stated that the defense of justification is not applicable to a charge of criminal mischief. Defendant was acquitted of the four assault charges, but convicted of criminal mischief.....
...defendant claimed he was trying to avoid what he believed was an attack by the bar owner. He pushed hard against the emergency exit door — hard enough, apparently to break the glass — in order to retreat from what he described as unprovoked aggression. The justification defense seems peculiarly appropriate to a situation such as this, where defendant inflicts damage to property in his attempt to avoid physical injury to himself. The People argue, however, that defendant was not entitled to the justification charge, because his testimony indicated not that defendant caused property damage to avoid personal injury, but that he never intended to cause property damage. The People would limit the availability of the justification defense to cases in which the conduct is admitted to have been intentional, but in avoidance of a greater injury. The cases on point, particularly Huntley, indicate that the People have tendered a much too narrow interpretation of the circumstances under which this doctrine may be applicable.
Here, as in Huntley, an aspect of the defendant's testimony is inconsistent with the defense. In that case, Huntley never admitted that he intentionally stabbed the victim, just as the present defendant never admitted that he intentionally broke the glass. Indeed, it appears well settled that this type of inconsistency should not deprive defendant of the requested charge.....
In any case, a practical consequence of inconsistent defenses will usually be an erosion of the defendant's credibility.Derry 1946 said:...I don't know for certain, but I think some jurisdictions do not permit inconsistent defenses....
In any case, a practical consequence of inconsistent defenses will usually be an erosion of the defendant's credibility.
Most of the time in a self defense case the defendant's story will be a core part of his self defense claim, so maintaining credibility can be especially important. It's hard to imagine a jury giving any credence to a defendant's story when it goes something like: I was justified in shooting him; and if you don't believe that, it was an accident; and if you don't believe that, I wasn't there.
The guy may not be convicted--I tend to think that it will be hard to seat a jury that won't be sympathetic.There was an attorney on TV pointing out that case involves a burglar (someone who unlawfully enters for the purpose of committing an offense) and attempted rapist still in a private residential building full of potential victims, not a public place. He was still in the act of burglary at the very least at the time of the encounter.
The point about the would-be rapist still being in a private building I think is important. One article I saw quoted the husband as saying he didn't want the assailant to do to anyone else what he had done to the wife. We do know that the wife was not a pre-selected target, the assailant was filmed going door to door in the building trying to get in to whatever apartment he could. Further, the surveillance video of him going toward the elevator did not look like he was "trying to escape", somebody "trying to escape" would more likely be running, he was kind of sauntering, I bet he had a smirk on his face.The guy may not be convicted--I tend to think that it will be hard to seat a jury that won't be sympathetic.
That said, chasing someone down and beating them to death is going to be difficult to legally justify. Burglar or not, rapist or not, murderer or not, still in the building or not. Once someone breaks off and genuinely tries to escape, justification for deadly force generally evaporates.
Never might be too strong a word. But short of some really unusual circumstances I would agree.Further, lethal force is never justified in preventing what actions someone MIGHT do in a few minutes or later that day.
That's an interesting theory, but I really haven't seen it floated anywhere or any case law that would suggest it has legs. Of course it probably hasn't come up.JohnKSa said:...I could see that kind of justification might be successfully used in a situation where an attacker, for example, had systematically killed more than one victim in view of another citizen and, having exhausted the ready supply of victims in the immediate vicinity was leaving the scene with the murder weapon(s) and in such a manner that the citizen observing the criminal had every reason to believe that he was not fleeing after having committed a crime but was actually engaged in an ongoing attack and was searching for additional victims....
...It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. Effectiveness in making arrests requires the resort to deadly force, or at least the meaningful threat thereof. "Being able to arrest such individuals is a condition precedent to the state's entire system of law enforcement." Brief for Petitioners.
Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, 440 U.S., at 659, 99 S.Ct., at 1399. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts, the presently available evidence does not support this thesis. The fact is that a majority of police departments in this country have forbidden the use of deadly force against nonviolent suspects. See infra, at 18-19. If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. See Schumann v. McGinn, 307 Minn. 446, 472, 240 N.W.2d 525, 540 (1976) (Rogosheske, J., dissenting in part). Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect's interest in his own life.
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.
It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape,.....
Yes, Mullrnix v. Luna (Supreme Court, No14--1143, 2015). It involved a question of qulified immunity for a use of lethal force to terminate a high-speed chase. The Court found that the use of lethal force was reasonable for the purposes of the Fourth Amendment, so the officer was protected against a 42 USC 1983 suit. The Court considered it in terms of the danger the suspect created by reason of his efforts to avoid arrest (slip op. at 12):danez71 said:There was a instance where the police shot a fleeing home invasion suspect that was driving 100mph on the wrong side of the freeway.....
...The fact is that when Mullenix fired, he reasonably understood Leija to be a fugitive fleeing arrest, at speeds over 100 miles per hour, who was armed and possibly intoxicated, who had threatened to kill any officer he saw if the police did not abandon their pursuit, and who was racing towards Officer Ducheneaux’s position. ...
There was a instance where the police shot a fleeing home invasion suspect that was driving 100mph on the wrong side of the freeway.
They shot him from a police helicopter.
While fairly rare, the police (I think all LASD) have done it about 10 times in the last 15 yes or so and have trained to do it since, I believe, the 80s or maybe 90s.
. . . . Tennessee v. Garner Memphis Police Department v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In that case the Supreme Court looked at the reasonableness of using lethal force to stop a fleeing suspect and did so in the context of a 42 USC 1983 civil suit. . . .
I don't want to get to "inside baseball," as Frank likes to call it, but . . . . Frank knows this, but for purposes of keeping this discussion on track, I would like to point out that a criminal charge against a non-LEO is a whole different beast from a s1983 excessive force suit against a police officer. The former is a claim that the non-LEO violated a state (usually) statute and is governed by criminal law doctrines, rules of criminal procedure, etc. The latter is a civil case, usually a claim that the officer violated the plaintiff's constitutional rights (often mixed with claims of violations of statutory rights), and embraces doctrines like qualified immunity. It's also important to note that qualified immunity doesn't apply to non-governmental actors.Frank Ettin said:. . . . Mullrnix v. Luna (Supreme Court, No14--1143, 2015). It involved a question of qulified immunity for a use of lethal force to terminate a high-speed chase. . . .
But again, it's a 42 USC 1983 case. It would be interesting to find some cases involving private citizens.
That's most likely part of it. Another is hinted at in the story:Double Naught Spy said:....If he didn't take the plea deal, the DA may have figured there being a tough job to get a conviction from a jury.
...Diallo caught Nash as he was running away, and a fight broke out, according to authorities....
and...Nash’s younger sister was among those who urged the District Attorney’s office to drop the remaining charges...
...Diallo’s supporters included members of the Black Lives Matter movement, civil rights leaders, and educators...
So if Diallo's story is that he tried to detain Nash, Hash resisted, and Diallo had to defend himself, a self-defense plea probably becomes more attractive to a jury.
Yes, the current spin doesn't seem to be entirely supported by the video.Double Naught Spy said:....The video shows Nash was waiting on the elevator. The door opened and Diallo walked out and when Nash stepped in, Diallo turned and hit him with a tire iron repeatedly. It was a vicious attack. Go back and rewatch. There is no attempt to detain.
An autopsy determined [the would-be rapist's] death was caused by complications related to his injuries, cocaine intoxication and heart disease.
old lady new shooter said:Any thoughts on what influence, if any, the autopsy report had?
An autopsy determined [the would-be rapist's] death was caused by complications related to his injuries, cocaine intoxication and heart disease.
I.e. would there have been reasoning along the lines of if he hadn't been high on cocaine (the part that was his own choice) maybe the beating wouldn't have killed him? Sort of like contributory negligence or something?