When exactly does self-defense become assault or manslaughter?

[Cosmoline]

What I'm telling you folks has been established law since there was established law. It's an extremely basic principle. And it's the reason why you can't shoot someone without a reasonable belief that they pose an imminent and unlawful deadly threat to you or another. There are exceptions to this rule, but it is the general rule none-the-less. The matching force rule is the starting point in any discussion of self defense. It's not some new legislation I'm suggesting, it's bedrock black-letter law in all fifty states and in most nations.

Your responses tell me you're still not paying attention to what I'm telling you. Under the default rule you are not allowed to use deadly force unless you reasonably believe you or another is faced with imminent deadly force. Very simple. If you are faced with non-deadly force, you are not allowed to use deadly force. Unless the law creates an exception as with the homestead or in case of rape.

 

[Graystar]

Lotsa questions I know and you don't have to answer them... just think about them.

Sure. And here are some for you to think about...

Am I obligated to risk him pulling out a knife, which was tucked in his pants behind his back, just because I didn’t see it?

Am I obligated to risk a hand-to-hand encounter with a Karate black belt just because he’s smaller than I am?

Does the simply physical ability to run a half-mile away in an open direction qualify as a “retreat with complete safety†when you know you may turn around just to find that the perp has simply followed you?

Am I under any obligation at all, to risk my life, when I am in fear of losing my life?

 

[Graystar]

What I'm telling you folks has been established law since there was established law. It's an extremely basic principle. And it's the reason why you can't shoot someone without a reasonable belief that they pose an imminent and unlawful deadly threat to you or another. There are exceptions to this rule, but it is the general rule none-the-less. The matching force rule is the starting point in any discussion of self defense. It's not some new legislation I'm suggesting, it's bedrock black-letter law in all fifty states and in most nations.

So if someone stops me in the street and demand that I hand over my money, and this person has no weapons in his hands...are you saying that I *can't* shoot him?

 

[Stand_Watie]

Arkansas may be somewhat unique in allowing the use of deadly force to protect limbs and eyesight. Most states allow the use of deadly force only when in fear for your life.

I don't know how many states do allow this, but at least three that I know of (Texas, Michigan and Florida) allow the use of deadly force to defend against "serious bodily injury", "great bodily harm" or words to that effect.

 

[carebear]

So if someone stops me in the street and demand that I hand over my money, and this person has no weapons in his hands...are you saying that I *can't* shoot him?

Yep.

If someone just walks up and says "give me your money" of course you CANNOT shoot them. Otherwise you'd be capping hobos left and right. (and that's not right..... unless they're CLOWN hobos )

There has to be an immediate implicit or explicit threat and a 'reasonable belief' that the means exists to carry out the threat.
(the aforementioned 'boilerplate' self-defense law)

ie. "give me your money or I'll KILL you, accompanied by a weapon or suggested weapon (pointed finger in pocket) or a disparity of force (2-3 unarmed guys your size or just one ninja with Real Ultimate Power )

The disparity of force issue is why the armed potential rape victim can typically fire away at will at an unarmed man who (in a reasonable way)threatens rape. (rape=grievous bodily harm)

 

[Cosmoline]

So if someone stops me in the street and demand that I hand over my money, and this person has no weapons in his hands...are you saying that I *can't* shoot him?

Yes. Otherwise you'd be able to shoot the homeless, creditors, politicians, and others who make such requests with no iron for assistance.

 

[Graystar]

Yep.
Yes.

Well, in New York State at least, you’d both be wrong.

S 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...
...
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
...
(b) He reasonably believes that such other person is committing or
attempting to commit a kidnapping, forcible rape, forcible criminal
sexual act or robbery

So you see, If I believe that the person is robbing me, I can use deadly force against him. This is typical across the country. That is why Bernard Goetz did not go to jail for shooting those teenagers. As I recall, they didn’t even get a chance to demand his money before he fired on them (they asked for money.)

 

[Col. Mustard]

North Carolina requires an immediate threat of death, serious injury or rape to justify the use of deadly force. Retreat/withdrawal must be attempted if possible, except in the home. In the home, an intruder may be shot while attempting to break in; but once he's inside, he must pose a threat to you in order to justify the use of deadly force. (I am not making this up.) If you walk into your living room and find an intruder with your TV set in his arms, you may not shoot him (unless he tries to hit you with it). You're entitled to use deadly force to protect a third person if that third person would have been entitled to use deadly force.

Clearly, there are lots of gray areas. "Serious injury" is not defined, and once you are engaged in a fight that could lead to serious injury, it may be impractical to draw your gun, or the BGs might find and take it.

Unfortunately, the only correct answer to this dilemma is the preference to be tried by twelve rather than carried by six.

 

[Graystar]

...but once he's inside, he must pose a threat to you in order to justify the use of deadly force.

OMG even New York isn’t that nuts!

3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.

 

[carebear]

Greystar,

I demur. For a crime to be "robbery" by any criminal code I'm aware of, it 'requires force or threat of force' to achieve the unlawful taking. That's one thing that differentiates it from larceny, burglary and other kinds of theft.

In the Goetz case, the issue was the reasonability of Goetz's belief that the muggers constituted an immediate, unavoidable threat and that their numbers (5 to 1), given the totality of the circumstances, provided the "implicit threat of force" (via disparity of force) that made the request a 'robbery' under the law and justified his use of deadly force in response.

One teen walks up to a grown man on the subway and asks for $5 with no weapon present and he fires? That man is is going up on murder charges.

 

[Graystar]

In the Goetz case, the issue was the reasonability

In *every* case the issue is whether the belief is reasonable.

You’re probably right that shooting a lone person because he *asked* for 5 bucks is not going to hold water. However, in the scenario I gave I said the person *demanded* I hand over my money. And the justification laws, at least in New York, don’t require that an actual robbery take place. What’s required is that the person defending himself reasonably believes that this other person is committing or attempting to commit a robbery.

If someone you don’t know comes up to you and demands that you hand over all your money, it is reasonable to assume that you are being robbed. At that point (in New York) you’re justified in using deadly force.

 

[carebear]

ARTICLE 160--ROBBERY
Section 160.00 Robbery; defined

Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:

1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or

2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.


Section 160.05 Robbery in the third degree

A person in guilty of robbery in the third degree when he forcibly steals property.

Robbery in the third degree is a class D felony.


Section 160.10 Robbery in the second degree

A person is guilty of robbery in the second degree when he forcibly steals property and when:

1. He is aided by another person actually present; or

2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:

(a) Causes physical injury to any person who is not a participant in the crime; or

(b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or

3. The property consists of a motor vehicle, as defined in section one hundred twenty-five of the vehicle and traffic law.

Robbery in the second degree is a class C felony.


Section 160.15 Robbery in the first degree

A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:

1. Causes serious physical injury to any person who is not a participant in the crime; or

2. Is armed with a deadly weapon; or

3. Uses or threatens the immediate use of a dangerous instrument; or

4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.

Robbery in the first degree is a class B felony.

Given the corpus of the law, I'm surprised Goetz got off using fear of robbery as an affirmative defense. Except that there were 5 of them they don't seem to met the terms of the crime. He was lucky the people of NYC were fed up with predators on the subway. But you're right on the reasonability issue. That's good for you citizen's of NY.

I think part 4 of first degree is stupid, how are you, joe citizen, supposed to know it was unloaded. Luckily, he's legally yours at third degree.

Personally, I guess I'd have to wait till they gave me the alternative, the "or else".

I'd hate to shoot a guy who didn't have an "or else" on tap.

 

[Graystar]

Given the corpus of the law, I'm surprised Goetz got off using fear of robbery as an affirmative defense.

That’s because you completely missed what I said. The issue is not whether an actual robbery was taking place. The issue is whether the person reasonably believed that a robbery was being committed.

S 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...
...
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
...
(b) He reasonably believes that such other person is committing or
attempting to commit a kidnapping, forcible rape, forcible criminal
sexual act or robbery

*That* is why he got off. And that is point I was trying to make earlier about risk. The law does not obligate you to place your life at risk before attempting to defend it. That is why the retreat requirement is only operative when you can do so “with complete safety.†And that is why the robbery that you reasonably believe is being attempted doesn’t have to match the description of robbery laid out in the law. That’s not the criteria. The “reasonable belief†is the criteria.

 

[Silent-Snail]

Last I heard here in Wisconsin if a BG is in your house you are required to at least attempt to leave before using deadly force. Please somebody truthfuly tell me I'm wrong on this? If I find out that this is true I'm moving to Texas as soon as I can.

 

[carebear]

That’s because you completely missed what I said. The issue is not whether an actual robbery was taking place. The issue is whether the person reasonably believed that a robbery was being committed.

AHA! But I DIDN'T! YOU missed what I wrote!

But you're right on the reasonability issue. That's good for you citizen's of NY.

So THERE! Yeah, okay, it was a poorly written little paragraph. 'I was multi-tasking' is my only affirmative defense. :banghead:

Sorry for that last misunderstanding. My fault.

I think the fact that the jury actually saw the reasonability from his perspective is what made the acquittal such a surprise to all and sundry. Good jury instructions from the judge?

Were there any witnesses to his "have another" statement besides the assailants? It seems like he got railroaded at the civil trial because he didn't go down at the criminal.

 

[Graystar]

So THERE! Yeah, okay, it was a poorly written little paragraph. 'I was multi-tasking' is my only affirmative defense.

lol! Got it

Good jury instructions from the judge?

I think it was more like people being sick and tired of the crime in the city.

Were there any witnesses to his "have another" statement besides the assailants? It seems like he got railroaded at the civil trial because he didn't go down at the criminal.

As far as I know there weren’t. Don’t know if I’d call it railroading...New York juries are famous for their huge awards, and he really did bring it unto himself by making that remark and shooting again. Personally, I think he should have gone to jail for the shooting. In my view there were two shootings...the first was justified, the second wasn’t. However, the prosecutor treated the two as one shooting, so he got off. Of course, the best thing that happened was that the crime rate dropped by 50% immediately after the shooting was publicized, and stayed at record lows for a few weeks after. If that aint proof that concealed carry can reduce crime...I don’t know what is.

 

[Cosmoline]

Robbery includes the threat of force, and in this case you are allowed to presume a threat of deadly force and use deadly force to counter it.

If someone merely comes up to you and demands money, without more, there is no robbery or attempted robbery. And you'd better not kill them. Understand?

 

[Graystar]

If someone merely comes up to you and demands money, without more, there is no robbery or attempted robbery. And you'd better not kill them. Understand?

I understand what you are saying. You're still wrong (at least in New York.) The criterion for the use of deadly force is not that an actual, technically accurate robbery is occurring. The criteria is that the person defending themselves reasonably believes that such an attack is occurring or being attempted. If it's not obvious to the cops that the belief was reasonable, then they let a grand jury, and if necessary a jury, decide whether the belief was reasonable.