This is why you don't chase after the bad guy.

[jmorris]

I think if you're going to kill a man, for any reason, you should have to prove that you had no other "reasonable" choice.

Interesting, guilty until proven innocent and shift the burden of proof from prosecution to the defendant....on second thought I don't like the way that sounds.

 

[Frank Ettin]

...You definately have a reason to use whatever means you know of to fight for your life without having an armchair quarterback second guessing what you did after the fact and making you have to "PROVE" YOUR ACTIONS....

...guilty until proven innocent and shift the burden of proof from prosecution to the defendant....on second thought I don't like the way that sounds.

Nice fantasies. But let's have a look at the legal reality of using force in self-defense.

In every State it is a crime of some sort to intentionally threaten, hurt, or kill another human. If you are defending yourself or someone else, that is what you are doing. But fortunately our laws recognize that sometimes one may be justified in intentionally threatening, hurting or killing another human.

However, you do not have the final say as to whether your threat or act of violence against another human was justified. That determination will be made by others after the fact -- the district attorney, a grand jury, or (if you're unlucky) the jury at your trial. That's the way things work in the real world, and if the final determination made by your jury is that you were not justified, you will go to jail (subject to your rights to appeal your conviction of a crime).

If you are going to claim that your act of violence was legally justified, it will be up to you to at least produce evidence prima facie supporting your claim. If you're on trial and can't make a prima facie showing of self defense, the jury will not be instructed that they could exonerate you on the basis that your threat or use of force was justified.

Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.

As Ms. Steele explains the unique character of a self defense case in Part 1 (emphasis added):

...Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. ...

 

[The Alaskan]

^ What he said. ^

 

[AStone]

I don't know where to begin
other than stones at frogs.

Surely, early guns
meant to kill food.

 

[Bobson]

Interesting, guilty until proven innocent and shift the burden of proof from prosecution to the defendant....on second thought I don't like the way that sounds.

Let's not beat around the bush. If accused of a felony violent crime, you're being arrested and jailed, and either paying for your freedom or remaining jailed until your trial is over - over a year in many cases. You're stripped of your freedom and held against your will while a professional, successful litigator tries to prove your guilt. He stands to gain enormously by painting you guilty. In contrast, you can either pay tens of thousands of dollars of your own money to hire a competent defense, or be saddled with a free but grossly inexperienced and generally unmotivated defender. He stands to gain little by setting you free. The press will follow your trial and legally paint you any way they please, likely tarnishing your reputation far beyond anything you'll ever manage to undo. The fallout of your televised trial will likely follow you for the rest of your life, possibly earning you unwarranted death threats, difficulty gaining meaningful employment, and general harassment from the idiots roaming free in this country.

Innocent until proven guilty? Cute.

You may be thinking, Ok, but how often does that really happen? You're probably right... not often. What consolation is that to the person it has happened to? If it happens to you or a loved one, would you still rock on your heels and say it's an acceptable flaw of our system?

 

[Bobson]

More to the point...

Incredibly foolish tactics notwithstanding, anyone who understands use of force justification already knows not to chase a retreating "bad guy." While the justification laws do vary from state to state, force is only ever justified against an active [perceived or real] threat. A retreating person pretty much never falls in that category.

 

[Frank Ettin]

...Innocent until proven guilty?...

And this notion is widely misunderstood.

"Innocent until proven guilty" is merely a sort of non-technical, casual way of referring to the presumption of innocence.

The presumption of innocence is the technical, legal rule describing the prosecution's burden of proof in a trial on a criminal charge. In a trial on a criminal charge, the prosecution must prove beyond a reasonable doubt that the defendant committed the crime. The defendant in a trial on a criminal charge is presumed to be innocent, but that presumption is rebuttable if the prosecution, in the opinion of the jury, meets its burden of proof. If the prosecution fails to meet its burden of proof, the defendant is entitled to a verdict of "not guilty."

But it doesn't work quite that way when one pleads self-defense.

In a criminal trial, the prosecution has the burden of proving the elements of the crime beyond a reasonable doubt. So if you are charged with voluntary manslaughter, the prosecutor must prove, essentially, that you intentionally shot the guy who died.

But if you are pleading self defense, you will necessarily admit that you indeed intentionally shot the guy. You will have admitted committing the elements of the crime; and by your admission you have established prima facie that you committed the elements of the crime.

Your defense is that you are excused from criminal liability for your act of violence because you were justified. If you can put forth evidence supporting your claim, the prosecution would now have to show beyond a reasonable doubt that you were not justified. Of course, the less convincing you are the easier it will be for the prosecution to do that.

 

[jmorris]

And this notion is widely misunderstood.

"Innocent until proven guilty" is merely a sort of non-technical, casual way of referring to the presumption of innocence.

And the quote above my use of it referred to the presumption of guilt.

 

[chipcom]

Because I believe if you kill a person when you had an opportunity to do otherwise, you've committed murder. I think if you're going to kill a man, for any reason, you should have to prove that you had no other "reasonable" choice. I believe that retreat, if and when possible, is a reasonable choice.

"Reasonable" is in the eye of the person being threatened with death or grievous bodily harm...not for Monday morning quarterbacks with political axes to grind.

 

[Kleanbore]

Posted by chipcom:

"Reasonable" is in the eye of the person being threatened with death or grievous bodily harm...not for Monday morning quarterbacks with political axes to grind.

No, not at all.

What reasonable means in this context is what most people, knowing what the defendant knew at the time, would have believed or done under the same circumstances.

 

[jrdolall]

If (and that is a big IF) you decide to chase down a fleeing suspect and engage in a gun battle then you better be darned sure you can convince a judge and jury that, despite the "apparent" retreat, you still felt that your life was in danger. I can envision plenty of scenarios where this would be the case A known violent person that had previously threatened or harmed others? "He said he would be back to finish this" sort of reasoning.Again, you better be able to PROVE all of that in a courtroom.

I know that internet junkies like to talk about what they would do and how it would be self defense but in many cases even clear cut SD cases will put you through years of legal tangles and ruin you financially even if you are eventually found not guilty. Do you have $100k in savings? That will be thrown down the legal system in the first year.

 

[Kleanbore]

Posted by jrdolall:

I can envision plenty of scenarios where this would be the case A known violent person that had previously threatened or harmed others? "He said he would be back to finish this" sort of reasoning.

That wouldn't begin to cut it from the standpoint of justification. The threat must be imminent.

Take the time to read all four links posted by Frank Ettin in Post #102.

 

[strambo]

If (and that is a big IF) you decide to chase down a fleeing suspect and engage in a gun battle then you better be darned sure you can convince a judge and jury that, despite the "apparent" retreat, you still felt that your life was in danger. I can envision plenty of scenarios where this would be the case A known violent person that had previously threatened or harmed others? "He said he would be back to finish this" sort of reasoning.Again, you better be able to PROVE all of that in a courtroom.

...

There is a middle ground between the two parts in bold that applies to the case in the OP. When the criminal ran away it removed the imminent threat from the citizen, however, it was reported he may have said he was going to another house. Deadly force can be used for self-defense or to protect an innocent 3rd party from imminent serious harm. That would be the legal self-defense angle for chasing him, to warn and protect others.

I'm not saying that is, or isn't, what happened, just that it is yet another option and reason why chasing someone who is retreating could still be a justified use of force.

 

[chipcom]

Posted by chipcom:No, not at all.

What reasonable means in this context is what most people, knowing what the defendant knew at the time, would have believed or done under the same circumstances.

I disagree...unless you are actually in the same position as the defendant, you can't know what was reasonable or not reasonable at the time. Hindsight is always 20/20 and Monday morning quarterbacks always see the open receiver or the open hole.

I say this because in way to many cases the prosecuting attorney goes out of their way to present all kinds of gotcha scenarios where a "reasonable" person who was not there, in harm's way, might be persuaded that there was an out that either really wasn't there, or simply was not apparent to the defendant at the time. Reasonable is in the eye of the beholder...and what is reasonable to one man after the fact may not be reasonable or even apparent to another man under stress.

If you wish to survive...which is job 1...your thinking must be focused on surviving...not on legal what-ifs.

 

[Spats McGee]

No, not at all.

What reasonable means in this context is what most people, knowing what the defendant knew at the time, would have believed or done under the same circumstances.

I disagree...unless you are actually in the same position as the defendant, you can't know what was reasonable or not reasonable at the time. Hindsight is always 20/20 and Monday morning quarterbacks always see the open receiver or the open hole.

For legal purposes, Kleanbore is right. The "Reasonable Man" standard is what "a reasonable person" in the position of the defendant, armed with the information possessed by the defendant at the time, would have done. What is "reasonable" will be judged after the fact, by a judge or jury.

 

[Frank Ettin]

Posted by chipcom:No, not at all.

What reasonable means in this context is what most people, knowing what the defendant knew at the time, would have believed or done under the same circumstances.

I disagree...unless you are actually in the same position as the defendant, you can't know what was reasonable or not reasonable at the time. Hindsight is always 20/20 and Monday morning quarterbacks always see the open receiver or the open hole.....

Yes, hindsight is 20/20, but nonetheless understand clearly that you do not have the final say. You will in fact be judged by others after the fact.

....Reasonable is in the eye of the beholder...and what is reasonable to one man after the fact may not be reasonable or even apparent to another man under stress.....

Not in the courtroom.

You might have thought that your use of force was reasonable. But if the jury disagrees, you will be found guilty and go to jail.

 

[Spats McGee]

I say this because in way to many cases the prosecuting attorney goes out of their way to present all kinds of gotcha scenarios where a "reasonable" person who was not there, in harm's way, might be persuaded that there was an out that either really wasn't there, or simply was not apparent to the defendant at the time.

Really? In what way? Got any examples of the prosecutor "going out of their way to present all kinds of gotcha scenarios?"

The prosecutor does have a duty to present "the State's side of the story." Whether that's a "gotcha scenario" or not, this fact alone highlights one of the major differences between defending a "vanilla" crime and an SD shooting. In the former, the whole burden is on the State to prove each and every element of the crime charged. In the latter, the burden is on the defendant to produce at least some evidence that the shooting was justified. IMO, it's also much more likely in the latter that the SD shooter will need to testify.

Reasonable is in the eye of the beholder...and what is reasonable to one man after the fact may not be reasonable or even apparent to another man under stress.

Legally speaking, incorrect.

If you wish to survive...which is job 1...your thinking must be focused on surviving...not on legal what-ifs.

I do not consider the two mutually exclusive.

 

[Kleanbore]

Posted by strambo:

When the criminal ran away it removed the imminent threat from the citizen, however, it was reported he may have said he was going to another house.

His having said so would not necessarily amount to a factual basis for believing that anyone else was in fact in imminent danger--that the "criminal" (now a fleeing person who had apparently intended to commit a crime, but who may not have) did in fact have the ability and opportunity to seriously harm anyone else, and that he had placed anyone else in jeopardy; nor is there any indication that the man who killed him had no other reasonable alternative than deadly force.

Deadly force can be used for self-defense or to protect an innocent 3rd party from imminent serious harm.

When immediately necessary; and the operative word is imminent.

That would be the legal self-defense angle for chasing him, to warn and protect others.

I should think that the man doing the chasing would have quite a challenge in convincing "the reasonable man" that pursuing someone with a weapon had been reasonably necessary to warn anyone.

I'm not saying that is, or isn't, what happened, just that it is yet another option and reason why chasing someone who is retreating could still be a justified use of force.

Not likely--at all.

In some jurisdictions, if one has witnessed the commission of particularly heinous crime of violence, if the perpetrator clearly presents a serious danger to others, and if there is no other way to stop the perpetrator, the use of deadly force may be justified, but only immediately after the crime has been committed.

Working from memory here--we have people here to correct me if needed.

 

[strambo]

Kleanbore, see post #7. I'm sot saying whether he should, or shouldn't have, chased him, just throwing out some other considerations.

If he is trying to get inside your home to kill you, gives up and says he'll just go kill someone else that is still an imminent threat to that "someone else." By all means call 911, but no reasonable person would think that the police could respond before he could cross the street, knock on the door and shoot the neighbor in the face.

Also, from a practical standpoint, how would you reasonably warn someone if not by pursuing with a weapon? Would you do it unarmed? How could you not follow him, read his mind and sprint ahead?

Again, not saying the pursuit was the best course of action (obviously not), but if one decides to try and protect the neighbor he is headed towards, how else would you go about it?

Would I have chased him? Probably not, but I never answer in absolutes because I wasn't there and we just have a poorly written news account to go by. Assuming I felt he would be a threat to others, I would probably split the difference, call 911 and observe from a distance (armed of course) that way I could keep the dispatcher updated of his location and protect myself (or others) if needed.

 

[Kleanbore]

Posted by strambo:

If he is trying to get inside your home to kill you, gives up and says he'll just go kill someone else that is still an imminent threat to that "someone else."

I doubt it. Imminent means about to happen.

The resident properly armed himself after a man had been "banging on [his] door as if he were attempting to break the locked door open" ; he apparently went to the door, which may not have been prudent, but he was not injured at that point. But he then went outside--with his wife and son, no less-- to investigate. That's not the school solution here.

He then got dressed, changed firearms, and went looking, out of "concern for the rest of the neighborhood'" He followed the man for about four houses.

Based on that account, he had absolutely no lawful justification for pursuing or for threatening or using deadly force.

He was fired upon and died.

http://gephardtdaily.com/local/new-details-emerge-in-millcreek-shooting/

Also, from a practical standpoint, how would you reasonably warn someone if not by pursuing with a weapon? Would you do it unarmed? How could you not follow him, read his mind and sprint ahead?

The problem is, the resident is now pursuing someone who is not committing a crime. The person being pursued would be justified in defending himself--with deadly force, if necessary.

 

[strambo]

The problem is, the resident is now pursuing someone who is not committing a crime. The person being pursued would be justified in defending himself--with deadly force, if necessary.

Umm...no. The criminal in possession of an illegal firearm, knives, attempting B&E is still committing crimes. Further, the criminal would not be justified in using deadly force because a guy follows him, shines a flashlight on him and says "I know who you are." That is hardly an imminent threat of serious bodily harm by the homeowner "pursuer."

I'm fine with this being a very bad idea and he shouldn't have done it, I've agreed with that from the start.

 

[Kleanbore]

Posted by strambo:

Umm...no. The criminal in possession of an illegal firearm, knives, attempting B&E is still committing crimes.

The firearm and knife are irrelevant to a self defense claim, and the attempt at B&E is over.

Further, the criminal would not be justified in using deadly force because a guy follows him, shines a flashlight on him and says "I know who you are." That is hardly an imminent threat of serious bodily harm by the homeowner "pursuer."

Of course.

The point is that if the pursuer points a firearm at him, the man being pursued would have an objective basis for reasonably believing that he faces an imminent threat of death or serious bodily harm.

 

[Jeff White]

Umm...no. The criminal in possession of an illegal firearm, knives, attempting B&E is still committing crimes.

That's true, but pursuing him to stop those other crimes is getting away from self defense and into the realm of making a citizens arrest. Some states have no provision for citizens arrest. Those that do have limits on them. A homeowner or a CCW holder is not a peace officer and has no duty to pursue the person he just ran off and take that person into custody.

You are moving the scenario from self defense to citizens arrest by pursuing your assailant and saying you are trying to stop him from committing further crimes as justification for your pursuit and any actions you take. I don't know any state that grants citizens arrest power under certain circumstances that also grants them any immunity for actions they take while exercising said power.

I suppose if the guy you were chasing had stolen your canister of Sarin gas you might be make a defense of others claim by chasing him. I think you are getting onto shaky legal ground if you pursue and shoot the suspect and you have no legal duty to act.

 

[The Alaskan]

Posted by chipcom:No, not at all.

What reasonable means in this context is what most people, knowing what the defendant knew at the time, would have believed or done under the same circumstances.

So I kind of have an issue with this. Not so much that I disagree with it, but, putting myself in the place of juror, it doesn't work.

I consider myself to be a "reasonable person," even if I disagree with some views expressed here. I think at least some who know me personally would agree. I choose not to carry a firearm (or any weapon) for self defense. I know that I am not alone in this decision. (Not EVERY gun owner carries.)

So, to me, thinking as a juror "what would a reasonable person do" is akin to thinking "what would I do?" Well quite obviously, I would not have pulled the trigger. So for me, in really almost any event, I can't, in good conscience, acquit-even though I believe in the right to self defense and the right to choose to use a firearm in that defense.

 

[Frank Ettin]

Posted by chipcom:No, not at all.

What reasonable means in this context is what most people, knowing what the defendant knew at the time, would have believed or done under the same circumstances.

So I kind of have an issue with this. Not so much that I disagree with it, but, putting myself in the place of juror, it doesn't work.

I doesn't work? Really? In fact it does work, and that's the way these sorts of issues have been dealt with in court for a great many years.

Kleanbore has described reality. The fact that you don't like it or are unwilling to accept it doesn't change reality.

...So, to me, thinking as a juror "what would a reasonable person do" is akin to thinking "what would I do?" Well quite obviously, I would not have pulled the trigger. So for me, in really almost any event, I can't, in good conscience, acquit-even though I believe in the right to self defense and the right to choose to use a firearm in that defense.

In other words, you are prejudiced.

Were you a juror in a self defense case, you would be unable/unwilling to follow the instructions of the judge regarding what the law is. Rather you are expressing the intention to ignore the law and to instead apply your own personal standards.

Under our Constitution (the 6th Amendment) a criminal defendant is entitled to an impartial jury. If you are determined to judge the facts of a case according to your personal notion of what rules should be, rather than what the law actually is, as instructed by the judge, you intend to deprive the defendant of his right to an impartial jury.

We can only hope that your prejudices become apparent during voire dire and you therefore will never be allowed to sit on a jury in a self defense case.