self defense law

[jafc]

Thats why I am increasingly frsutrated at our legal system. They are slowly taking away the right to defend our right to property, life, and happiness, while simultaneously making it easier for the criminals to sue for damages they incurred while attempting to deny another person their constitutional and god-given rights. Texas has the right idea, massachusets is fucking ass backward if you ask me. Here in Ohio we fall between the two extremes.

While I agree that the legal system can be frustrating, any system which seeks to assign equal rights to all - both victim & perpetrator - will have similar problems. Not assigning equal rights means someone gets to decide who the perpetrator is &, that smacks of totalitarianism - the govt decides who is & who is not in the right. It will occassionaly occur the justice will not prevail because, while guilt seems intuitively obvious, proof is lacking. I don't see this as taking away your right to defend yourself just ensuring that the circumstances justified the response. No it is not perfect but better than most. If you want to relax the standard for you to defend yourself, then you must also excuse the anxious cop who opens fire on your silly ass for brandishing a weapon to "defend your happiness"

[DeusTrismegistus]

Walter,

Like I said.... I don't carry anything and haven't for years... sepcifically b/c of the legal ramifications being so high and the practical benefits being so low. I have only been in 1 situation where I felt a lot better for having been armed, but talked myself out of it, which was a much better resolution for all involved. I have no interest in going to jail, even if it's just overnite.

As for Tims guy.... I feel bad for him. There's always a time and a place for putting up your hands but the hell of it is, anything that results from that is YOUR fault.... If the guy hits his head and dies... it's gonna fall on you.

Cost of living in a "civilized" society, I guess.

Lewitt

Thats for living in a stupid, over PC, society with a bunch of limp wristed girly men. If someone attacks you and they die, the law should be tough shit. They are the ones who are trying to deny your rights as a human and citizen. If civilized means the crimanls have more rights than the just citizens, then I will go wherever isn't civilized.

[bruce]

Lewitt,

No offense, but if you're not trained to do legal analysis, don't, even lawyers make mistakes.

Just like your self-defense analysis was off the mark so to is your second amendment argument and Massachusetts laws regarding gun permits. Guns, like alcohol or drugs, are subject to regulation. You can carry a gun in Massachusetts if you are issued a permit, and any state can choose how it regulates any controlled substance or item so long as their regulations comport with Federal standards, like the Constitution. Given the long tenure of Massachusetts, and other states for that matter, conditioning the carrying of a lethal weapon on having a permit to do so it is safe to say such regulation is consistent with constitutional standards.

As for second amendment proponents, their reading of the amendment fails to account for the full language of the amendment, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." There is a very strong argument to be made that the right of the people to keep and bear arms is based in the need to defend their state in times of armed invasion. The second level of that argument is that given the existence of the national guard, multiple layers of armed law enforcement agencies as well as the national army that stand ready to defend the various states should they be attacked, current circumstances remove the basis for the right for the people to bear arms.

As for your propensity for having weapons nearby, its a world view I don't share with you. Despite the alarmists and conspiracy theorists out there I've managed to survive 52 years without ever carrying a knife or a gun for protection. And its not like I've lead a sheltered existence by any definition. My brother was fond of guns and carried one without a permit. It didn't keep him from being murdered while in his 30s.

Personally I believe in the rule of law, I recognize as well as anyone the flaws of our system, but as it is a system developed by people it is bound to be flawed. Despite that I am an optimist, as I find that viewpoint improves both my mood and my health.

I started into this thread because I try to correct misinformation when I can. I'm not interested in carrying on a long debate on the topic as it had been covered ad nauseum on the board before. I am also aware that I hold the minority position here and that emotions tend to run high on such topics.

To each their own, but just like I'd expect you to correct me if I misstated something within your area of expertise that is all I was trying to do here.

Walter

good post ... thanks.

[wkfung108]

A few points:

1) one of the best sources of information I've ever seen for practical realistic self defense (by which I don't mean martial arts-focused) is nononsenseselfdefense.com. Lots of words on that site, but all worthwhile and probably easier to absorb than material from LexisNexis. This includes legal stuff, technical/how-to stuff, and a fairly useful section on making your home less likely to be burglarized.

2) in real-world violence (in which people don't actually "square off" against each other but tend to get ambushed), pre-emptive attack is pretty much something you have to give serious consideration to if running or leaving won't be an option. If my life is in danger, I'm more interested in the potential effectiveness of my response than in the legality of it.

3) within the context of that LexisNexis definition, "reasonable" is going to be in the eyes of the beholder, i.e., a jury who might not understand item 2 and look only on the surface. From a practical standpoint, it's not whether what you did was reasonable, but if RANDOM STRANGERS will think it's reasonable. As the extreme example: A young, fit, 6 foot tall man walks down the street and a "shady" looking character (big, wearing black leather, heavy stubble, [insert stereotype here]) starts screaming obscenities, edging close to the guy, and the guy pre-emptively attacks, he might have a hard time convincing a jury that he was reasonable in fearing for his safety and the attack was pre-emptive self defense.

If, however, instead of a fit, tall young man, you substitute my mother -- a 4' 11" 85lb 70 year old woman -- and she attacks pre-emptively, it would be far easier to convince a jury that she was reasonable in being alarmed.

4) every state is different. my uninformed impression is that in Mass., Calif., and NY, you're a lot more restricted in what you can legitimately claim is self defense compared to Texas and Florida ...

it seems the "reactive" ideas of tai chi chuan work well with the self defense laws.

i would think there are times to take the proactive/preemptive attack to ensure your safety but it appears that it would be illegal to do so.

[wkfung108]

Regarding that Harvard grad student doing time (Alexander Pring-Wilson): many people, including me, are not convinced that's the way things went down. He got off easy, IMO.

Walter,

That may be correct, but is it not also unconstitutional to deny Citizens with no history or Substance Abuse, Criminal Record or Mental Defect the Right to Bear Arms?? Massachusetts is a "shall issue" state meaning that you must be allowed a permit to own or carry a weapon unless you have a disqualifying factor, and yet it is left up to the Chief of Police of each individual town to decide (on a completely arbitrary basis) whether or not they Shall Issue that permit.

When I was teaching for SigSauer in New Hampshire I took an excellent course put on by Andy Branca (a criminal defense Attny) called Self Defense and the Law. I am almost certain he quoted me the Mass statute that I mentioned, but I could be mistaken.....

When I lived in Texas (yeeeeeeeeeehaw!!!) there were literally DOZENS of statutes justifying the use of Lethal Force, and many many shootings would never even make it to a grand jury. Even when I was legally able to carry I didn't..... But I certainly had my share of Fuego de Armas en la casa. Since I have moved to Mass, I dont even carry a blade any more due to the likely legal entaglements. In Mass the THREAT of deadly force is equivilent to the USE of deadly force (pointing a gun buys you the same case as shooting someone with it)..... so imagine the BS invovled in getting attacked, defending yourself successfully with no weapon..... but when popo shows up, you have a Spyderco in your pocket. The DA gets a hold of that.... and suddenly its a felony, not because you USED a knife, but BC you HAD the knife.....

Be Careful!! It's perfectly reasonable to assume that you may win the battle and lose the war, so to speak..... Just ask that Harvard Grad Student that's doing time for killing 1 of 2 young getlemen who assualuted him at 2am... He stabbed one, who later died after his friends drove him around in their car for hours rather than take him down the street to the hospital that was less than 2 miles away.

Lewitt

[Kevin_Wallbridge]

I love this argument:

"I prefer the view that the 2nd amendment exists to protect ourselves from our own government. We were established by a revolution. The founding fathers were smart men and they knew that even teh best system can become shit over time, the 2nd amendment makes since from a POV of trying to ensure the citizens have the capability to have another revolution if need arises."

The image of a band of merry men with their Glocks and Rugers standing up to the US gov't is so quaint. How very "minuteman" of you. Seriously, we can see today what armed resistance to American power looks like. IRAQ! If you read the 2nd amendment to include IEDs then the argument has weight. The fighters in Iraq have proven time and again that the gunplay gets them killed. Sniping sure, but thats not a handgun. Most of the time the guns are for use against other militias and terrorizing civilians. The fantasy that some arms you can keep in your home are going balance the coercive force that can be weilded by a major government is bizarre to me.

The fact that the guy who decked the road rager was released without chrages and molestation is very encouraging. Should the cops have just taken his word and said "OK, you can go." One umarked guy standing over a busted up bleeding guy... If you get released without charges then no-harm no-foul. If I get dusted by a goon I hope the cops don't just take his word that I was the attacker and let him go.

[DuYiZhang]

In DR the most I've seen that is similar to the one in Tim Cartmells' student story is that they both get locked up and released a few hours later with a modest bail or bribery.

My uncle beat up a dude real bad on the street and that's all he got, 9 hours of detention, the other guy to the hospital, my uncle was to be in court on a certain day, not even the judge showed up, just my uncle in the courtroom and his lawyer. My uncle was dissappointed.

In the worst case, you get sued for a dime, if it gets uglier, they may try to have you do time for supposed intention of killing, but that's if you O.D. it. And there's a solution to that too.

[Chanchu]

Good posts every body thanks to Walter for giving input.

The law is a scary thing any one who has ben involved in it can tell you that esp if you are the "wronged party" the 'bad guys'
professional crooks or unsavory types who are aften involved with the legal system are very very skilled at munipulating the system and the law. They have dealt with it all their live in many cases and if you are a regular jow you are probably dealing with it for the first time. Most likly it will be a very bad experiance for the wronged party. Thats what I have seen.

Don't go there if possible- there is no wrong or right just the law..

Personal ownership of weapons is being chipped away at in the US in almost every state* slowly but surely one law at a time. Does nothing to stop criminals from getting weapons Imo. It does cow the masses and makes them very EZ to control.

* Except some places like Texas evidentally.

[johnwang]

This is one great reason that one should train in throwing art (a story told by a crimal lawyer).

"Dear judge, I don't remember what happened, we got into argment, and our body tangled and we both fell. His head hit the ground and died. It was a pure accident. I had witness that when he punched at me, I didn't hit back."

[Dale Dugas]

Iron Palm is good as well. People see you slapping a guy and he goes down and does not get up.

No weapons.

Just your empty hand.

Better yet is what Shifu Wang is talking about where you blend into his force and control it and throw him. To others it looks like you just moved and the other guy lost his balance.

The issue is tough, but Massachusetts seem to be very soft on criminals IMHO.

[Brian L. Kennedy]

I was teaching this topic a few months back to my students who are Taiwanese prosecutors; I am a former prosecutor from Imperial County California and I was a Public Defender from San Bernardino County .

And the first thing I told my students is:
The first rule is there is no rule.
And that is true, at least in California. All the various rules you hear maybe true from a law book perspective but they do not reflect the reality of the situation. There are a lot of variables that make talk of a rule or even rules meaningless.

How it is going to unfold is this; you get into some kind of physical altercation. Cops show up. Now the first variable is how the cops see the incident. And understand that they are not going to necessarily take your word for what happened. They do not know you from a hole in the ground and just because you and your mother know you would never lie that does not mean the cop taking the report is going to just accept your version of events.

And the other guy is going to have a different version, usually along the lines of you started the sh*t. And the other people present may not give your version with you acting in legit self defense and the other guy being the aggressor. The witnesses will often be quite equivocal about who started it. Plus if your martial arts training stood you in good stead, you are the winner of the fight or at least the less messed up party and that can end up making you look like the aggressor. So in any event the cop is going to listen to what everyone has to say and then write up their report based on that plus what their "street cop sense" tells them happened.

Then we get to variable number two; how does the prosecutor who makes the charging decisions view what is laid out in the cop's incident report. Depending on the case load the same case could end up being charged as attempted murder, felony assault, some misdemeanor or not charged at all. Depends on how busy the prosecutor is and how bad the other guy was hurt and whether the bar owner, the other guy or somebody else is pushing for charges. I know all this well, as I was the charging deputy for my courthouse.

Then variable number three; how does the jury see it, how good is your defense attorney, how good is the prosecutor, how good a witness is the other guy (who maybe now is starring as "the victim" with you playing the role of "criminal defendant").

And guess what, let us assume you get past all this. Your legal adventure is only half over. Now the other guy sues you in civil court and you are facing a whole new set of unknowns.

So simple pat answers about the legal aspects of self defense are misleading. Actually worrying about the legal aspects is pointless because if it is a serious street encounter or even if you are mildly drunk in a bar you are not going to stop and ponder the law. If you had that level of awareness and clarity you probably would not be in the situation you found yourself in.

Remember your number one self defense tool is not a physical technique it is awareness and avoidance. My bottom line advice is avoid when possible (even if you have to back down and lose face) and when it is not, go full bore if the situation really is serious.

As a side note I should mention that having a martial arts background is a major liability in court. For example if, as Mr. Dugas does, you make your living largely from your fame and knowledge of “iron palm”, that is going to weigh heavily against you as the other side (which maybe the prosecutor or the civil plaintiffs attorney) is going to paint you as a nut case with mental problems who set out to be the aggressor. (I am NOT saying this is true about Mr. Dugas, it is an example. I respect Mr. Dugas and am fully confident he is a well adjusted adult with lots of common sense and a law abiding martial artist and business owner, but because he is well known he is a good example).

Remember what is normal for us martial arts types, seems very abnormal to a regular group of 12 people. If you get on the witness stand and tell the jury that you have a daily training regime of hitting a bag filled with iron pellets and then soaking your hands in special ancient iron palm juice or that you regularly go 3 minute rounds, full contact with the headgear; it is going to go hard against you. Most regular "Mr. and Mrs. Middle Class jury members" are going to think you are some kind of psycho and that you are probably in the wrong and their verdict will reflect that.


Take care,
Brian

[Mut]

great advice Mr Kennedy!

thank you for spelling out what really should be pretty obvious... but is not!

[Muad'dib]

Great posts by Walter and Brian. I'd like to add the following additions.

1. Be careful when reading a statute, any statute. In the US most statutes are interpreted via cases, so therefore fuzzy words like "reasonable person" or "deadly force" may have entirely different meaning than you might personally think they do. Using John Wang's hypo as an example, there is no way of knowing if throwing on a hard surface might be considered deadly force in your state. Certainly if the prosecutor, cops or jury in Brian's description discover that you are a practitioner of a throwing art and find a reference to slamming someone head first into the ground somewhere on a website, well... You have a problem. Even if you don't have the intent to kill the other guy, simply showing any person would reasonably expect and should know of the possibility of serious harm resulting from hitting the ground hard may be enough to show intent enough to get you up for murder 2.

And while Walter mentioned that self defence is an affirmative defense, neither he nor Brian mentioned that simply saying "I killed him in self defense" is not enough. An affirmative defense means you have to prove it. (Insanity is another affirmative defense, btw.) So, depending on where you are, the jury might just crucify you regardless of the law, because you are in a hippy liberal suburb where any form of self defense is frowned on regardless of the statute. (Which goes to Brian's exact point.)

Finally, I'd like to take a slightly different tack on Walter's constitutional interpretation of the 2nd amendment.

That may be correct, but is it not also unconstitutional to deny Citizens with no history or Substance Abuse, Criminal Record or Mental Defect the Right to Bear Arms?? Massachusetts is a "shall issue" state meaning that you must be allowed a permit to own or carry a weapon unless you have a disqualifying factor, and yet it is left up to the Chief of Police of each individual town to decide (on a completely arbitrary basis) whether or not they Shall Issue that permit.

This is, as mentioned, incorrect. I don't agree with Walter's reasoning, though I think it's a fine argument. The exact interpretation of the meaning of the wording of the 2nd amendment has never gone before the Supreme Court for interpretation, which is one of the reasons we have "shall issue" and "may issue" states. (BTW, Mass is a "May Issue" state, not a "Shall Issue".) Since the wording has not had solid interpretation issued, it is up to argument exactly what is or is not Constitutional. This will change very shortly however, as the Supreme Court heard arguments regarding the restrictions on firearm possession in DC in February, and I believe the decision is expected to be issued in June.

[Ben]

Great thread people!

It may be easier to get out of legal trouble when poeple hear your martial art is the gental meditative art of Tai Chi.

[Muad'dib]

Well, there is enough info on Taiji as a martial art out there that someone might be able to make a case for it anyway, but then you can always call John Wang as an expert witness for the defense.

Defense Atty: Mr. Wang, you are an expert in Chinese martial arts, with a background spanning XX years, including both, shu ay - jow, and tie-chee, amongst other arts. I understand you or your students have won many international tournaments, and you are a respected contributor to the Empty Flower Forum, one of the top Chinese Martial Arts forums, where you are a "Great old one", is that correct?
JW: Yes.
DA: You honor, I'd like to have Mr. Wang certified as an Expert witness.
Judge: Any objections from the prosecution?
Prosecutor: None your honor.
Judge: Duly noted, Mr. Wang is accepted as an Expert Wintness. Please proceed.
DA: Mr. Wang, what is your opinion of Taiji as a fighting art?
JW: (Laughter)
DA: What's so funny?
JW: You said Taiji and "fighting art" in the same sentence. There is no relation. No person alive can fight with taiji. They can only push people around. Can you kill someone with a push? No!