self defense law

[bruce]

SELF-DEFENSE
Self-defense is a defense that may be claimed by a defendant when the defendant reasonably believes that force is necessary for his or her protection against another person's use or attempted use of unlawful force. Self-defense means that the defendant is justified in using force against the other person.
Justification based on self-defense depends on the existence of a necessity, on the circumstances under which the force was used, and on the degree and type of force that was used. The amount of force that is used must be proportionate to the amount of force that a defendant encountered. The defendant is justified in using more force against another person only when the other person has used severe force against the defendant.

A defendant must generally admit that he or she committed an intentional act in order to claim self-defense and in order to be entitled to a jury instruction on self-defense. The defendant must also claim that his or her intentional act was justified. However, the defendant may deny certain allegations regarding his or her intentional act and be entitled to a jury instruction on self-defense.

A reasonable belief that force is necessary for a defendant's protection does not require actual danger to the defendant. If the defendant's belief is reasonable, the defendant is entitled to use force to protect himself or herself. A belief is reasonable if an ordinary and prudent person would have had the same belief under the circumstances. The defendant's belief is based on his or her apprehension at the time of the danger. The danger does not have to be real. It may be an apparent danger. The danger must be viewed from the defendant's perspective in order to determine what a reasonable person would have done under the circumstances.

A defendant may be entitled to use deadly force against another person. Deadly force means force that is intended or known to cause death or serious bodily injury or that is capable of causing death or serious bodily injury. Serious bodily injury is an injury that creates a substantial risk of death, of serious permanent disfigurement, or of loss or impairment of a bodily member of organ. A defendant is entitled to use deadly force if he or she would be justified in using non-deadly force, if a reasonable person would not have retreated, and if the defendant reasonably believed that deadly force was necessary in order to protect the defendant against the other person's use of unlawful deadly force. However, the defendant cannot use deadly force unless he or she formed a reasonable belief that he or she was in danger of death or serious bodily injury. The defendant may base his or her belief on the other person's words or actions.

A defendant is generally required to retreat before he or she uses deadly force against another person, if the defendant could safely retreat and if a reasonable person would have retreated under the circumstances. If a reasonable person would have retreated, the defendant is not entitled to a jury instruction on self-defense. The defendant's duty to retreat depends upon his or her location at the time of an incident and upon the circumstances. The duty to retreat does not apply to the use of non-deadly force.

A defendant is not entitled to use force if he or she was merely responding to a verbal provocation. However, verbal threats may justify the use of force if the threats are accompanied by acts that show an intent to carry out the verbal threats.

A defendant is not entitled to use force if he or she is acting in response to a lawful assertion of force, such as in the case of a search or an arrest of the defendant. If the defendant is being arrested or is being searched by a law enforcement officer, the defendant is not entitled to use force, even if the arrest or search is unlawful. The defendant is only entitled to resist arrest if the law enforcement officer uses excessive force before the defendant resists his or her arrest. The defendant must know that the person who was using excessive force was a law enforcement officer. If the defendant did not know the identify of the person who was making the arrest, the defendant is entitled to use force, even if the person is a law enforcement officer.

A defendant is not entitled to use force if he or she consents to the force that is being used by another person. Examples of consent to the use of force include medical treatment or mutual combat, such as a boxing match. However, in order for the defendant to have consented to force in a boxing match, the defendant must have agreed to engage in mutual combat.

A defendant is also not entitled to use force if he or she provoked another person into using unlawful force against the defendant. However, the defendant may be entitled to use force, even if he or she provoked the other person, if the defendant shows that he or she abandoned his or his encounter with the other person and if the other person continued to use unlawful force against the defendant. Provocation on the part of the defendant means that the defendant intended to provoke the other person and that the defendant engaged in some act towards the other person.

In order to be entitled to a jury instruction on self-defense, a defendant must show that he or she reasonably believed that the use of force was necessary. Such a showing may be introduced by the defendant's testimony or by other evidence. The defendant is not entitled to a jury instruction on self-defense unless another person committed some type of overt act that led the defendant to believe that force was necessary. In some states, the defendant may introduce evidence of the other person's violent or aggressive character. However, if the defendant introduces evidence of the other person's violent character, the prosecution is entitled to introduce evidence of the other person's peaceful character.

After a defendant meets his or her burden of proof with regard to evidence that justifies the use of force, the prosecution may produce evidence that the defendant was not entitled to act in self-defense. The prosecution's burden is only a burden of persuasion and not a burden of proof, however. The prosecution does not have to prove that the defendant was not entitled to act in self-defense. The prosecution may show that the defendant previously used force against another victim or previously committed other unrelated offenses that show the defendant's propensity for violence.

Self-defense is a defense that is normally presented at the guilt stage of a defendant's criminal proceedings. It may not be used at the penalty stage of the proceedings in order to mitigate the defendant's punishment for an offense. However, in some states, the defendant may claim self-defense at the penalty stage for an offense that is punishable by the death penalty.

Copyright 2008 LexisNexis, a division of Reed Elsevier Inc.

[bruce]

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.

[dragontigerpalm]

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.

According to your source quote: "A reasonable belief that force is necessary for a defendant's protection does not require actual danger to the defendant. If the defendant's belief is reasonable, the defendant is entitled to use force to protect himself or herself. A belief is reasonable if an ordinary and prudent person would have had the same belief under the circumstances. The defendant's belief is based on his or her apprehension at the time of the danger. The danger does not have to be real. It may be an apparent danger. The danger must be viewed from the defendant's perspective in order to determine what a reasonable person would have done under the circumstances." This would allow a preemptive attack just as responding to a verbal assault would if the threat was accompanied by menacing gestures or behavior.

[TaoBoxer]

I massachusetts you don't have the "right" to claim self defense. The COURT decides whether or not to give you the option....

Lewitt

[Buddy]

S'why I'm gonna have to leave this bitch someday (that and other reasons). Bill, check your PMs.

[Walter Joyce]

I massachusetts you don't have the "right" to claim self defense. The COURT decides whether or not to give you the option....

Lewitt

I don't think that is correct. Self-defense is an affirmative defense and the decision whether or not to use it is for defense counsel. There mat be requirements of certain factual conditions that must be met, but that is different from your statement. Denying a defendant the right to assert a legitimate defense is unconstitutional under both the United States and the Massachusetts constitution.

[Buddy]

OMG, lawyers!

[jafc]

Yes, OMG lawyers - & thank god for the ones on your side.
It is important to keep in mind when reading lay interpretations of the law that law is a practice - like your martial arts - & there is a huge difference between knowing what a front kick is & when, how, why & on whom to use it - spliced further what angle, how much force,etc....

Trying to be your own legal counsel is a lot like watching a kung fu film & then entering a full contact fight.

Hoping your post doesnt mean you've run into legal troubles,

JC

[Josealb]

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.

Not always, Bruce. I remember a story Tim Cartmell wrote once, about a student of his who was training Zhao Bao under him. He got into an argument in the middle of traffic, about a car i think, and the other guy went for him. Tims guy hit him (or did something else) and the guy went down so hard on the ground he broke his jaw. The guy initially got treated as if he used excessive unnecesary force, but witnesses explained what happened.

[TaoBoxer]

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

[Walter Joyce]

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

[strawdog]

Tim's student hit the guy once on the jaw and broke it. The guy fell on his knees as he got knocked out, broke his knee from the impact. Then hit his head on the concrete causing a concussion.

It was a complete self-defense scenario, but Tim's student was still taken to jail and released later. Later on the guy who tried to assault him tried to sue for damages.

[DeusTrismegistus]

Tim's student hit the guy once on the jaw and broke it. The guy fell on his knees as he got knocked out, broke his knee from the impact. Then hit his head on the concrete causing a concussion.

It was a complete self-defense scenario, but Tim's student was still taken to jail and released later. Later on the guy who tried to assault him tried to sue for damages.

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.

[DeusTrismegistus]

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

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.

[TaoBoxer]

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