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PostPosted: Tue Feb 13, 2001 4:10 pm 
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Location: Framingham, MA USA
An MA is walking on the streets of Boston with his girl friend, near the Prudential Center on his way to a restaurant.

They turn on to a side street,which was dimly lit and the restaurant sign could be observed less than a block aware.

As they pass some rental units on their right, a group of young men begin whistling, and one jumps out close to them making obscene gestures, and lewd speech.

The couple quicken their pace, but the obnoxious man runs ahead of them and turns, facing the girl in defiance and making further lewd signs and speech, and causing the couple to stop.

MA issues a clear and decisive "Get out of my way!", and the jerk leaps in front of the MA with hands on hips uttering obscenities.

MA has had it and quickly delivers a ridge hand strike to the jaw of the moron, dropping him to the ground. KO!

A couple on the other side of the street had witnessed these goings on and had called the police on their cell phone.

The police arrive and find the perp on the street out like a light, with no mark on his body and the ambulance is summoned.

They revive the idiot who denies that he knew what happend.

A police sargent arrives at the scene and charges the MA with assault and battery, because the idiot appeared out of it, and the witnesses were being questioned by detectives.

Under the circumstances described above, was the MA guilty of assault and battery?


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PostPosted: Tue Feb 13, 2001 6:21 pm 
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Location: Tallahassee, Fl, US
Well.....

In Florida, if he is charged at all it would be simple battery, that's if he is charged. It all dependes on if he can convince the police that he was defending himself or his girlfriend. Again he has to prove, just like in the last topic, that he was afraid of the jerky boy(hopefully its the same guy as in the last topic, I really hate that guy). The witnesses would play a big role in the guys future. I don't think this is an issue just for MA's this is a problem that anyone could be in. We just train for it.

One thing he has going for him is the fact that the jerky boy came to him and he did try to avoid the confrontation. He was also there when the police got there, scared girlfriend in tow. She could also play a big role in this. She would probably be taken aside and asked for her version of the story. If it is the same as his I think he will be ok

wait.. what was the question? oh yea..Can he be charged? Yes. Will he be? doubt it.

------------------
You can't fight if my thumb is in your eye.

talleyuechi@earthlink.net


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PostPosted: Wed Feb 14, 2001 2:18 pm 
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David,

The MA was well within his rights and should not be charged with A & B.

A battery is an intentional use of force without justification. The force need not be powerful; even a slight amount can trigger the crime.

In Massachusetts, it appears that intention can be imputed by reckless, wanton misconduct, the battery being the natural consequences of the act.

On the other hand, our MA was acting in self defense, and therefore justified.

Looking at it another way, if the use of force is justified, then there is no battery!

As usual in these situations, the reasonable man rule applies in the amount of force used.

Even if MA was protecting his girl friend, we have a long standing case justifying this.

(Commonwealth v. Malone, 114 Mass. 295-an 1873 case)


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PostPosted: Wed Feb 14, 2001 2:47 pm 
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Alan,

We are on the same page here. I totally believe that the MA was within his rights and that is what I was trying to say. The problem lies with what the witnesses saw. It is great to have these discusions but hard to do it in print, but please keep them coming.

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You can't fight if my thumb is in your eye.

talleyuechi@earthlink.net


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PostPosted: Thu Feb 15, 2001 3:59 am 
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Location: Sacramento, California, USA
Alan:

I disagree with you on this one. The jerk had his hands on his hips, and is apparently in front of the MA. What threat is he posing to the girlfriend at this point? What threat is he posing to the MA? Why can't the MA just go around the jerk? Yes, he is lewd in his language and behavior, but so are some radio personalities, and we can't drop them in the middle of the street.

I don't see the threat here. I don't see reasonable fear of imminent harm that would allow one to claim self defense. I think the MA can be booked. Whether he will be tried or successfully sued in a civil action depends on the skill of his attorney at pointing out few juries would condone the jerk's actions. But, given the right judge, the right jury instructions, and an eager agressive DA, the MA could be in trouble. Also, we are talking about an MA using his skills. For some, this borders on use of a deadly weapon.

I think MA is in trouble, and better hire a top flight defense counsel.

Robb in Sacramento


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PostPosted: Thu Feb 15, 2001 2:24 pm 
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Robb:
As a martial artist, the person probably recognized "hands on hips" as a threatening position. Many systems initiate attacks from this position.

Given the nature of the overall threat and the fact that a loved one was the target, I doubt if any reasonable person would charge the MA. (Or jury convict!)

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GEM

[This message has been edited by gmattson (edited February 15, 2001).]


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PostPosted: Thu Feb 15, 2001 8:57 pm 
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Robb:

My scenario depicted a character who not only used lewd speach, but he also mad gestures, and surely you must believe that a person chasing you and your friend up the street, disrupting the pace of both by first confronting the girl, and jumping in the path of the MA, was an overt action enough to justify the initiation of a self defense tactic. This was a demonstrated escalation of degenerating conduct.

GEM, sensei is right in that an MA could easily take the hands on hips position as an offensive move. What should he do, wait for the inevitable assault?

Lewd and Lascivious Conduct is a crime in itself, as would be the prevention of passage of a person or persons, and at the least a breach of the peace.

But, good work Robb for being the Devil's Advocate; there are many cases where under the right circumstances, the MA could be booked and forced to face charges or have to request a show cause hearing before a judge or clerk magistrate.


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PostPosted: Fri Feb 16, 2001 6:19 am 
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George & Alan:

George, you might be correct that an MA would take hands on hips as a threatening gesture, but that is not the issue before the court. The question is whether a reasonable person would view hands on the hips as a threat. Also, this question started as whether one could defend one's companion. The jerk standing in front of the MA poses no risk to the companion.

While one may use the defense of self defense when one steps up to defend another, they also step into the shoes of the person they are defending. Therefore, if the question is whether the MA could rely on self defense as a defense in court on the grounds the MA was defending the companion, I believe the answer is clearly no. The companion is not facing reasonable fear of imminent harm at the point the MA releases his attack.

Secondly, as to whether the MA could assert a defense of self defense for himself, I don't buy the argument that his lewd conduct coupled with his position on the street and his hands on his hips have placed the MA in reasonable fear of imminent harm either. Now, you tell me the jerk raises his arms away from his hips, or extends himself to block the path of the MA and the MA's companion from continuing to move forward, then I can look past the actions of the jerk, and examine the actions of the MA.

If the jerk raises his arms, or takes some other action that would place a reasonable person in fear, then the MA can use necessary force to counter the threat.

Now, when the MA is hauled in for questioning, the police, and later the jerk's tort attorney, are going to want to inquire into why the MA leveled the jerk with a potentially lethal blow to his head rather than using some other lesser level of force. They will also want to inquire into the MA's mental state. This hypothetical states the MA has had it, indicating a level of anger on the part of the MA. This anger, and the MA's actions alone could negate the requisite mental state for asserting self defense. The MA was not in fear, he was pissed. Being pissed is not a recognized defense. If it were, road rage would be recognized as a civic contribution.

Sorry Alan and George, but I think a young DA or a hungry tort attorney could fatten up on the MA in this hypo.

Peace
Robb in Sacramento


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PostPosted: Fri Feb 16, 2001 8:00 pm 
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Robb:

I do enjoy the Socratic method of questions and answering, which I believe to be the finest method of teaching in law schools.

In our scenario we have several things happening as part of the same incident.

(a) Accosting and lewd speach by a person to other persons.
(b) Gestures which may be lewd but could also be threatening.
(c) hostiltity demonstrated by all of the above and pursuit of persons engaged in the lawful activity of walking on a public street.
(d) escalation of hostile activity by first
jumping in front of the female and then standing with hands on hips preventing the forward walking motion of the MA.

Do you think that the action of the perp was in this case his right to protect free speech?

Was the perp in fact guilty of criminal activity before being taken out by the MA?

If in fact a breach of the peace, lewd and lascivious conduct, or assault was committed by the perp, under the total circumstances, that the MA had no right to defend himself and use reasonable force?

Must he submit to taking the first strike before he can assert self defense?

What action should he have taken to protect his girl friend, who was total baggage and under his wing for protection and to protect himself from perceived hostility?

Remember that the law in Massachusetts is that if intentional force is used, and the rightful purpose is self defense, there is no battery.

Your hypothesis ignores the total conduct of the perp, and the fact that he detained and interfered with the right of the couple to walk upon the sidewalk of a public street.

Look at the total picture and tell me that the there were no crimes committed by the perp prior to the use of force by the MA.

I agree that this would be fodder for tort attornies and zealous prosecutors; and from the beginning left the evidence a little open as to the key element of what the witnesses said. Further, we left the case in limbo stating that the Sergant had only charged the MA with assault and battery.


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PostPosted: Sat Feb 17, 2001 6:48 am 
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Location: Sacramento, California, USA
Alan:

Socratic method? I don't think my professors ever thought I caught on to it. But I enjoyed the cool togas we wore in law school.

Umm. Crimes. Is uttering obscenities a crime in Massachusetts? How the heck do you put on a sporting event? Maybe I just live too close to Oakland and Raiders fans to think that uttering obscenities is a crime.

Getting in your way on the street a crime? Wow, apparently you have no religious groups in MA handing out literature on the street. Or panhandlers. Or lost tourists. Oh, wait a minute. I've been a lost tourist in Boston who had his path blocked by a panhandler while ducking a particular religous solicitation. Never mind.

AH, but let's assume the jerk was guilty of some crime. Are you suggesting that the MA could be protected by some immunity associated with enforcing the law? What would the liability be for a police officer who dropped a person on the street for standing in front of him and yelling obscenities (OK, Chicago in 68, none, but in some jurisdictions, they take a dim view of their police officers hitting citizens without some overt act of violence.)

Perhaps the MA could rely upon the fighting words doctrine, but you did not indicate in your hypo that the jerk used fighting words. Besides, the fighting words doctrine, as I understand it, is not relied upon in most jurisdictions. Certainly, if it were, the defense of, "Sure I smoked him, cause he was dissin on me," would be a bit more prevalent.

Finally, you ask whether the MA needs to take a strike in order to rely upon self defense. I think we can leave that one for another day, with perhaps another good hypo from you to tantalize the others on this forum and cause them to jump in.

On a personal note, thanks for taking over this forum and for taking the time to put up intriguing hypos.

Peace.

Robb in Sacramento



[This message has been edited by Robb in Sacramento (edited February 17, 2001).]


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PostPosted: Sun Feb 18, 2001 12:35 am 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
Must he submit to taking the first strike before he can assert self defense?


Alan, what is case law on this in Mass?

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Van Canna


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PostPosted: Sun Feb 18, 2001 3:46 am 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>For the armed citizen, there exists a potential for being charged with assault almost anytime that they allow a potential attacker to conclude that the citizen is prepared to commit battery in order to protect himself.

The attacker may come to such a conclusion based upon the citizen's words alone__ "step away from my car or I will use force to move you_" or upon the citizen's demeanor and actions __ adopting some form of recognizable fighting stance, placing one's hand underneath a jacket as if reaching for a weapon, or actually drawing and displaying a deadly or non deadly contact or projectile weapon.<HR></BLOCKQUOTE>

Atty Andrew Branca [ the law of self defense]

**

Alan, any counterpoints?



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Van Canna


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PostPosted: Wed Feb 21, 2001 2:46 pm 
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Location: Framingham, MA USA
Robb and Van,sensei

There are no easy answers to when the first strike is justified in the scenario I presented because the facts were purposely more vague that I could have made them.

My mission is to get MA's to think in detail about such things.

It has been mentioned or suggested that perhaps the MA could have been charged with A & B with a deadly weapon, to wit: "a deadly strike by a trained martial artist".

Massachusetts has had many MA criminals, but I do not know of one case specifically involving that subject matter, although I understand that it has happened in other jurisdictions.

Getting back to our hero MA who has successfully defended his lady friend and self.

Try this one out:

In 1992, the Massachusetts Legislature enacted a statute to punish stalking.

It was defined or described as willfully, maliciously, and repeadedly following or harassing another person or making a threat with intent to place that person in imminent fear or death or serious bodily injury.

If there is a restraining order in place, there is a mandatory one year jail sentence.
(clearly not involved in our case).

The word "harass" is defined in the statute as "a knowing and wiffful pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys the person. Said conduct must be such as would cause a reasonable person.

The statute was Mass. General Laws Chapter 265, section 43.

Do you think that our perp in this case could be charged with "harrassment"?

Robb's believes that facts presented did not justify the action that our MA took, under California law.

Would Robb's view play in Boston?

Do you find the 1992 Statute objectionable in any way, and if so, why?

Van, sensei:

I do believe that the MA was justified in making the the first strike (an intentional act) because of the escalating hostitle conduct of the perp. Under the reaonable man theory, the circumstances were sufficient to place the MA in a frame of mind to prevent an attack on his lady friend and he.

There is no battery if the intentional act is justifiable.

Commonwealth v. Gagne 326 NE 2d 907 (1975).
Commonwealth v. Barton 326 NE 2d 885 (1975).

There is also Com. v. Roberta Shaffer cited in this forum as a case presentation on the law of self defense ("home is a man's castle") as it existed before and after this case.

Alan K


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PostPosted: Wed Feb 21, 2001 8:07 pm 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Alan K:

Try this one out:

In 1992, the Massachusetts Legislature enacted a statute to punish stalking.

It was defined or described as willfully, maliciously, and repeadedly following or harassing another person or making a threat with intent to place that person in imminent fear o(f) death or serious bodily injury.

(snip)

The word "harass" is defined in the statute as "a knowing and wi(ll)ful pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys the person. Said conduct must be such as would cause a reasonable person.

The statute was Mass. General Laws Chapter 265, section 43.

(snip)

Do you find the 1992 Statute objectionable in any way, and if so, why?<HR></BLOCKQUOTE>


ME! me, me, ME! Oh... oh... oh... pick Meeeeee! Image

I have a number of problems with the statute. But I'll chose just one (which is pervasive in both the statute and the definition of "harassment").

It hinges directly on "the intent" or "knowing and willful conduct" of the perp! Soooo, the perp just denys that was the "intent" (or that she/he "knowingly and willfully" acted in that manner) and there's technically no case.


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PostPosted: Thu Feb 22, 2001 4:28 am 
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Panther:

I can't go with you on this one. If denying intent ended a case, there wouldn't be a single first degree murder conviction in the counrty (OK, besides some of the more well known crazies who not only admit they intended to do it, but are proud of the fact they did it). Intent can be demonstrated by the facts and circumstances. In this case, the jerk followed the couple and placed himself in front of them. While the jerk may protest that he did not intend to obstruct the path of the couple, I somehow doubt the trier of fact would find the jerk's testimony believable.

Alan:

Could the jerk be charged with harassment, or perhaps even stalking? In California the few statutes I scanned seem to require some type of pattern. It is not clear, however, whether the pattern could be established over what is arguably a single transaction, the couple strolling down the street. I think, though, an agressive DA or a hungry tort lawyer could bring an action for harassment against the jerk. One could also bring an action for intentional infliction of emotional distress, perhaps defamation (depending upon what the jerk actually says), and false imprisonment (if the path were actually blocked and the couple prevented from moving). If the MA's actions had been justified, the companion might also have an action for negligent infliciton of emotional distress (by being placed in fear for her companion and perhaps herself -- should we really bore everyone to tears and do a "zone of danger" analysis?).

I still think the MA buys it on this one though, because he just wasn't fearful, he was pissed.

Peace.
Robb in Sacramento


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