You are involved in an altercation in a public place. You think that you can act real cool because some guy shook his fist at you, trash talked you, and told you that he would like to tear your head off.
A scuffle occurs, no one is hurt and you walk away, the police arrive at the scene, and you proceed in your walk away, when you are shoved in the back by the same dude; you turn, block and kick him under his arm and at his rib cage and you can feel the snap of his ribs.
What do you do.
The following offers no preset and is not intended to be a complete treatise on the law. One could spend a semester on the subject. I do hope that we can close the gap about how you may think and the way the law looks at things:
We all want to avoid physical conflicts, and we have all seen in these forums some excellent advise as how to avoid being attacked but realize that this mind set of being able to avoid such conflict is akin to our desire to drive defensively, but that in either case we all can be victims of physical attack (assault and battery) to the same extent that we can be involved in a motor vehicle accident.
In either case, we may be required to assert defenses if the facts so warrant to defend our actions in the motor vehicle accident or in our rights to defend ourselves.
In the motor vehicle case, your defense is either that you are not at fault or at least did not contribute to the accident, but if not what was the extent of your negligent contribution.
However, except for criminal cases, such as vehicular homicide, your right to assert a viable self-defense acquittal is dependent upon your ability to submit enough evidence prior to trial or at the lease during the trial, which if proved by you, would require an acquittal or not guilty finding or verdict.
There have been many scenarios and advice given in other forums, such as Van Canna, sensei’s Self Defense forums, with contributions by knowledgeable MA’s or professionals, presenting their thoughts on how to conduct yourself after the conflict is over and authorities arrive.
Some advice that I have read is quite excellent and theoretically appears to be good advice; others have required the giving of complete statements at the scene loaded with self serving statements designed by the speaker (in his/her opinion) to be exonerating.
Like in physical self defense, preconceived and unpracticed defenses can be fatal.
The ability to defend oneself successfully in the event of an attack or fight is an extremely complicated process, highly dependent on the facts in each case, and the evidence will be broken down step by step as in a martial arts kata or forms.
I have harped upon the fact that you have to earn the right to plead self defense; it is not a god given right.
There is much more to consider.
Let me just show you one example of a man leaving a tavern with his wife, attacked by young punks, but was none the less forced to defend himself up to Appellate levels:
The case was appealed to the Massachusetts Court of Appeals, and the case is
Commonwealth v. Safari (not published at this time) (No.99-P-1691) (July 11, 2001)
The Appeals Court found in favor of the defendant who had appealed and went into great detail on the law as well as in the facts creating the case.
The law is that “ when self-defense has been sufficiently raised by the evidence, the defendant is entitled to an instruction that places on the Commonwealth the burden of disproving the factor of self-defense beyond a reasonable doubt…Self-defense can be raised either through evidence presented by the Commonwealth as part of its case-in-chief or through evidence presented by the defense…’in determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible his testimony, that testimony must be treated as true’…Viewing the evidence in the light most favorable to the defendant…after Michael Lilly punched the defendant in the back of the head, the defendant turned around, saw a group of six to eight teenagers, and heard his wife yell, “They have a chair in their hand. Be careful.’ The defendant put up his hands trying to defend himself from the group, which included Felix Olibo and Lilly.
“Within about thirty seconds after Officer John Curley had separated Lilly and the defendant by pulling away Lilly, who was punching out defendant, Officer Curley heard more loud noise, turned, and saw the defendant and Olibo holding on to one another, pushing, shoving, and wrestling. Officer Curley then broke up the altercation, telling the defendant to go back into the restaurant, which he did. Officer Curley had to sit Olibo down on the sidewalk and restrain him to calm him down because he was out of control.
“Self-defense was the only theory upon which the defendant relied at the trial. He admitted to having an altercation with Olibo. The defendant’s testimony reflected more than a mere germ of concern for this safety and well being…He stated that he was surrounded by six to eight teenagers, including Olibo, who were throwing punches at him, and that he put his hands out to try and defend himself. The defendant’s wife saw the group of teenagers encircle the defendant and go for the chairs that were located in the restaurant’s patio.
The court goes on to state the law: “We recognize that a judge need not give a self-defense instruction unless there is some evidence that the defendant availed himself of all reasonable means of retreating from the conflict before resorting to self-defense or that no reasonable avenue of escape was available to him…However, viewing the evidence in the light most favorable to the defendant, not withstanding the arrival of Officer Curley on the scene, the jury might well have viewed the incident as but one continuing altercation. When outnumbered and surrounded by several teenagers arming themselves with chairs, the defendant might reasonably have believed that there was no avenue of escape from harm other than by self-defense. The right to defend himself from Olibo would not end with the mere presence of Officer Curley, as he was occupied with Lilly who was excited and needed to be restrained.
“Because the issue of self-defense was sufficiently raised by the evidence, the judge’s denial of defense counsel’s specific request for an instruction on self-defense was erroneous. Moreover, we cannot say with fair assurance that the error did not influence the jury, or had but slight effect. The trial judge’s refusal to give a self-defense instruction constituted prejudicial error requiring reversal. ‘Judgement Reversed Verdict set aside.”
The reason that I have asked you to read the above decision is to demonstrate the court reasoning and analysis of the judge or judges reviewing the case. I selected a case that went up on appeal after the defendant was found guilty in the Trial Court.
The Appellate Court in its decision discusses :
1. A synopsis of the reported facts
2. A discussion of the applicable rules (text law and statutes)
3. A report on other cases similar or completely on point, or applicable (called Stare Decisis)
4. The decision and ruling and why the Court made such ruling or finding.
In many cases the Court may point out the rules or cases which govern and why this case may be similar, different and not applicable to the case presented and to the prosecution or defense of the case.
When we examine the facts of the above reported case, the Court was careful to present its reasoning, why it took the position that it did, gave citations on cases involving self-defense and assault and battery.
No two cases are precisely the same and the difference in this case was unique in reported cases in this jurisdiction.
Can you guess what that difference was?
Well if you guessed that the difference was that the same combatants had two altercations; one prior to arrival of the LEO, and one after, you would be correct.
The Trial Court judge no doubt believed he was correct in his ruling based upon a second confrontation between the defendant and Olibo. The reasoning was no doubt that if the first confrontation was defensible, the second was not.
Contrary to popular belief, self-defense is predicated on a complex series of requirement.
There is a duty to retreat or escape which differs in cases where the scenario takes place.
We have the “Castle Rule” if the other person is not lawfully on your home premises or place of employment. (where the obligation is present but does not require taking every possible area to retreat prior to defense).
A stronger duty to avoid, retreat or run if it takes place in an open environment or public place.
In all cases the “reasonable rule” applies. What is reasonable in some cases is set forth in a “standard” (evolved by objective reasoning); in others it s subjective. Yes, I can hear you thinking that what is subjective to you might not be the same as what is subjective to the court
Was the use of your force proper or excessive?
Was the use of your force, when acted upon by you, warranted by the action of other person or persons?
The great jurist, Oliver Wendell Holmes, in Brown v. United States 256 U.S. 335., speaking for the majority of the Court pointed out that failure to retreat is one factor to be considered by the fact finder in determining reasonableness of the defendant’s conduct. However detached reflection cannot be demanded in the presence of an uplifted knife.
The right of self-defense success is often determined by the most subtle of facts, and the defense should be given to a competent trial lawyer in your jurisdiction.
After you have been involved in an altercation be alert for possible witnesses, call your attorney and keep your mouth shut. You can be a great reader of case law and spend many hours on research and think you are pretty good, and be your own lawyer at least temporarily, and if you did you would have a fool for a client. If you are in the right, try to write down and get names of witnesses, and make notes as to the scene (physical descriptions, persons on hand etc.)
Do not be concerned that if you fail to carry on conversations or answer questions by LEO’s, that they will assume you are guilty. Just like in a stop for speeding, be polite and cooperative but exercise your Miranda Rights.