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 Post subject: Self defense
PostPosted: Wed Aug 22, 2001 2:13 pm 
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Alan,

Good essay to review:
http://www.bladeforums.com/forums/showthread.php?s=1406a75ba311a09a15b4395b9b7e88aa&threadid=166594

What of this in Mass. <BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
Self-defense does not preclude striking first to avoid an imminent assault; it only precludes striking first when no danger is imminent.


Comments?


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Van Canna


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 Post subject: Self defense
PostPosted: Wed Aug 22, 2001 4:45 pm 
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Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
Van,

That was a good post and thread and it was well written containing some good examples and reasoning.

However the plea of self defense is not an absolute right. Courts can rule that the plea of self defense cannot be asserted that if both the case of the prosecution and the defendant, on all the evidence, fails if believed to be true, to meet the minimum standard of facts, which even if believed, as a matter of law would not constitute self defense.

Once there is enough to justify self defense as a plea, the standard of of proof does change and the defendant can prevail with a preponderance of evdence, but prosecution has the duty to prove beyond any reasonable doubt.

The author says in the beginning:

"A first point to remember is that self-defense is considered a justification for using force. It is a defense to a criminal charge such as assault, battery, assault with a deadly weapon/implement or murder. In response to one of these charges the defense would be to plead not guilty and claim self-defense".

The not guilty plea would be made at arraingment, but the right to claim selfdefense must be supported by evidence, and sometimes even the prosecutions allegations alone may justify the plea.

The duty to retreat does make it difficult at times to interpret and execute what would constitute a proper response to impending attacks.

In the case that I reported here some time ago, Roberta Schaffer, was given a life sentence when she shot her dangerous estranged and alcoholic husband after he threatened to kill her and their kids, chasing them down the stairs of their basement home, because there was an outside door leading out of the basement,because the court had the to make this sentence based upon what Massachusetts law on the duty to retreat required.

She was pardoned by a later governor and the law of home self defense lessened the duty to retreat, and I am sure that you are well aware of that.

But in the final analysis, we can ponder and try to come up with a set of facts or fact where the first actual strike is a justifiable grounds of self defense and it will still come down to what were all the facts in the circumstances.

I know that I could not make a certain confident decision in the miliseconds that it takes for the brain to sort out if I see a man coming at me with a club raised over his head when I know that my strike must come first.

He did a good job of presenting some of the scenarios, and his examples were good common sense, but as we all know, were not dealing with an exact science.

Thanks for the thread, and it would be well for people who read these MA forums to read.

Alan K


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 Post subject: Self defense
PostPosted: Wed Aug 22, 2001 9:32 pm 
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Location: Richmond, VA
At camp, Roy Bedard discussed this dilemma in one of his seminars. The basic answer being that you do not need to wait to be attacked before taking action. But again, you must use the reasonable man concept in judging whether an attack and bodily injury were iminent.

In Virginia, the home is considered the castle, and one in not required to retreat from it in lieu of defending ones self. A subtle but important difference from other states.

Rich


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 Post subject: Self defense
PostPosted: Thu Aug 23, 2001 2:14 pm 
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Posts: 493
Location: Framingham, MA USA
Rich:

Roy did a good job covering a lot of territory in his seminars.

My main interest concerned how his mission was to educate LEO's in the law relating to all aspects of police conduct, and I learned a lot in that area from his talks.

The problem is that we would have to present
in this forum many cases as reported to interpret whether a particular set of facts would justify the first strike.

I have tried to present some cases in this forum to assist in gleaning the meaning of the reasonable man theory and other self defense legal issues, but each phase can be like a half semester to complete.

There can be many circumstances where you do not have to wait to take action in a self defense situation.

In one of my recent posts I related the case of a man who had left a restaurant with his wife and was circled by a large group of youths. His wife yelled out "He's got a chair-behind you".

The man was justified to use the self defense plea even though he went after the chair assailant.

Some of these things are common sense such as the act of menacing can itself be at that point at least a simple assault, and if the cirumstancial evidence warrants, the proposed victim can initiate reasonable response,

Alan K


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