Uechi-Ryu.com

Discussion Area
It is currently Tue Jul 22, 2014 5:28 pm

All times are UTC




Post new topic Reply to topic  [ 11 posts ] 
Author Message
PostPosted: Wed Dec 19, 2001 3:41 pm 
Offline

Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
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.

Alan K.


Top
 Profile  
 
PostPosted: Wed Dec 19, 2001 6:42 pm 
Offline
Site Admin
User avatar

Joined: Wed Sep 16, 1998 6:01 am
Posts: 5985
Location: Mount Dora, Florida
Curious if the Officer John Curley is the same one who trained at the Hancock Street dojo. . .

------------------
GEM


Top
 Profile  
 
PostPosted: Wed Dec 19, 2001 8:27 pm 
Offline

Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
To: GEM

I have no way of knowing if he is the same John Curley. The court record does not contain the address of the officer. If he is the same, he would be great at a seminar.

Al


Top
 Profile  
 
PostPosted: Wed Dec 19, 2001 10:51 pm 
Offline
User avatar

Joined: Wed May 09, 2001 6:01 am
Posts: 986
Location: Chicago, IL USA
Counsellor,

Then my assertion that "I was in fear for my life, please get me to a hospital, I think I may have been injured," - then shutting up, is a good one or a bad one? Image

Seriously, in Illinois, the rules seem to be very similar. The biggest problem I see with any case involving multiple assailants and a single defender is the idea of excessive force. How on earth does one draw THAT line?

Obviously, the presence of a weapon in the hands of one or more of the attackers would constitute a reason for greater application of force.

An example - a friend of mine is a former Army Explosives Ordinance Disposal NCO (Army bomb squad Stg.).

He also has his RN and was working the night shift at a local hospital when, upon arrival at work, he saw a group of six young men beating the daylights out of one of the doctors on staff in the parking lot.

He grabbed his 6 battery Kel-lite and waded in, rescuing the doctor, who had multiple injuries, one of which was potentially fatal, manhandled him into the ER and got immediate assistance. The assailants received several minor injuries, ranging to bloodied noses and contusions. Nothing permament or requiring anything more than First Aid.

In the followup, the County Prosecutor decided she was going to make an example of my friend for assaulting these people, who were NOT attacking HIM and for illegal use of a weapon.

His defense hinged on Good Samaritan issues, defending a helpless person in a potentially lethal situation and justified the use and presence of the flashlight by stating that, as a First Responder trained person, in a low light situation, he knew he would need it to assess the condition of and render First Aid to the victim.

The Prosecutor, after getting heard in chambers and after the judge heard the defense, dropped the case as unwinnable.

The follow up to that was that my friend was almost sacked from his job at the hospital. He has a ni-kyu in Aikido and, one of the review board members, a woman with an attitude about hitting people and a dan ranking in Tae Kwon Do, tried to assert that he could have handled all six of the attackers unarmed!

When the Veteran's Advocate mentioned that this woman had never been in a street situation where rules do NOT apply and asked HER if SHE could have taken all six assailants barehanded, she replied, "Of course not. I am a tournament fighter."

My friend did NOT lose his job.

The point of this long story is that, even after court, there CAN be fallout of a physical encounter.

What avenues would be open to the man in your example if he had been an employee of the pub and the incident had happened as he was walking a patron to their car and management decided they didn't want to keep him of for "brawling in the street" or somesuch?

Respectfully,

Lee Darrow, C.Ht.


Top
 Profile  
 
PostPosted: Fri Dec 21, 2001 6:02 pm 
Offline
Site Admin
User avatar

Joined: Wed Sep 16, 1998 6:01 am
Posts: 5985
Location: Mount Dora, Florida
Lee's real-life example certainly points to a couple of dangers in teaching the martial arts:

1. Presenting M.A. instruction as more than it really is. Giving students a false sense of security outside the dojo.

2. Presenting M.A. to the general public as being more than it really is, giving prosecuting attorneys more ammunition than is called for.

Pleased to hear that the good Samaritan got off, although I'm sure his legal bill was enormous.

------------------
GEM


Top
 Profile  
 
PostPosted: Sat Dec 22, 2001 5:33 am 
Offline

Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
Lee,

You have raised some good questions in your post.

Defense of others is a viable defense in Massachusetts, but there are not a lot of cases on this.

From the cases we have there appears to be an emergence of a rule to the effect that one may use reasonable force in the defense of others who may be under attack. The justification appeaars to be co-extensive with the right of self-defense (Model Penal Code Section 3.05 & Commonwealth v. Monico 366 NE 3nd 885. Also the Model Penal Code in Section 3.08 recognizes "Use of Force by Persons with Special Responsibility, for Care, Discipline or Safety of Others".

Jusstification seems to be that the one could invoke the doctrine of crime prevention.
There appears to be no requirement that the recipient be relaated to the benefactor whose use of force comes under judicial scrutiny.

There was a case in Massachusetts where a prison inmate used force againsyt a guard, allegedly in defense of a fellow inmate.
)Copmmonwealth v. Martin 341 NE2nd 88a5 1976)

The court in that case said "An actor is justified in using force against another to protect a third person when (a) a reasonableperson in the actor's position would believe his intervention to be necessary for the protection of the third person, and (b) to the cirumstances as ts that preasonable person, would believe them to be, the third person would be justified in using jsuch force to protect himself. The reasonableness of this belief may depend in part on the relationships among the persons involved'...The actor's justification is lost if he uses excessive force, e.g. aggresive or deadly force unwarranted for the protective purpose."

The rule in this case was stricter for prison inmates and I will not elaborate on that.

As in self-defense there must be a threaat of harm to the person being protected before the defense can be invoked in a criminal case.

IN your example, the prosecutor must have utilized personal prejudice of some sort, as opposed to the duty of a DA which requires fair and unprejudiced application of the facts and to fully invesitigate all facts and issues.

I know that when I make these posts I have to write in a dispassionate manner and report the law as I know it IMHO.

However the various Asian MA codes, with the duty of use of reasonable force, and the doctrine of reasonable retreat do not appear to me to be in conflict the law, at least in this state.

I do not think that TKD codes of conduct would differ much from the Japaneese or Chineese, but your example shows a person who views real A & B or self-defense actions in the light of an MA Tournament.

I hope that I answered most of your questions, and welcome your post.

Alan K


Top
 Profile  
 
PostPosted: Sat Dec 22, 2001 6:20 am 
In my reading of the Canadian Criminal Code, we have no such requirement as: "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." Thank goodness.

Thank goodness because it sounds unrealistic.

Canadian Criminal Code:

PREVENTING ASSAULT
... / Extent of justification.
37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [R.S. c.C-34, s.37.]

SELF-DEFENCE AGAINST UNPROVOKED ASSAULT
... / Extent of justification.
34. (1) Every who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [R.S. c.C-34, s.34.]

And no our system is certainly not perfect either because it is also open to odd interpretations....


With sympathy,


Rick


Top
  
 
PostPosted: Mon Dec 24, 2001 3:09 pm 
Offline

Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
Rick,

Many years ago I (and my office) was required to repossess an aircraft in Canada on a lien asserted by our client (a bank).

We hired Canadian counsel who sent us Canadian Statutes, Codes and Case Law.

I was astounded by the manner in which Canadian Statutes were written. Each sentence and paragraph was clear and explicit, and did not contain the long rambling method used in Massachusetts wherein a statute needs to be read about 6 times in order to separate the meaning.

Codified law can be clear and explicit, and as I read your post see no significant difference in elements or standards of self-defense. What you posted does not codify the need to retreat, but as usual the devil is in the details.

You post, quote: "And no our system is certainly not perfect either because it is also open to odd interpretations".

You hit the nail on the head.

I am certain that you will find in case-Law research, part of the interpretation of reasonable self-defense, would include the need to walk away or some form of retreat.

Just a an absurd example, if defender A was standing with his back to a fire door in a building, say at concert where police security was known to be present at all portals, I think defender A might be required to back up and fling opern the fire door if attacker B exposed a real hostile threat but was unarmed to all appearances.

Even in the Code you present, the interpretation of what is reasonable under the circumstances. It is no doubt a "standard" (meaning objectivety as opposed to subjectivety and more than one element).

If such details are not codified, they become the law by case example.

None the less, I find that even in US states that have criminal law codified (such as in California-Remember the O.J. Case?) interpretation is mostly the result of decided case law which may touch on only one element or may become a landmark case because the justices chose to review the law in the subject venue or to give the general rule in the state, province or country.

In most instances, codification is good because when written as in the Canadian example, you have good "key" elements from which to begin research.

In closing I just want to address one point of GEM, sensei's post, which has to do with the duty of MA's to not deceive students with the belief that they are invinciple, and the publice perception of MA's.

I agree that LEO's or the media may view the action of an MA in a self-defense matter in a prejudicial way, and that student's may be led into a false belief in their abilty to withstand a street assault, but in these forums, and for all who subscribe to GEM's teaching, and those of the MA's and sensei's publishing and contributing to said forums, these attitudes are changing.

Thanks for the post.

Alan K


Top
 Profile  
 
PostPosted: Mon Dec 24, 2001 10:02 pm 
Offline
User avatar

Joined: Wed May 09, 2001 6:01 am
Posts: 986
Location: Chicago, IL USA
Mattson-Shihan,

Actually, my friend's legal bill was actually zero. When the prosecutor called him in, both his union and the Veterans Association sent representatives with him for the interview at no charge.

Also, my friend's sense of security was never at issue and the victim had no training. the only person who had an over-the-top view of MA was the person on the review board who thought that he should have been able to take the six perps out barehanded - and SHE was a black belt in TKD who should have known better.

Counsellor -

The actual reason that the DA decided not to prosecute was the prevention of a crime - notably serious bodily injury (which had already occurred - the Doctor received several broken ribs, a broken arm and a fractured jaw) and possibly homicide. He also cited the fact that David (my friend) IS a First Responder (given his EMT status as well), which gives him certain leeway (no pun intended) in use of force to rescue someone who has been injured.

The DA also cited that, if David had brought his second Kel-Lite into the fracas it would have been deemed excessive use of force, despite the disparity of numbers. The odds were six-to-one as the Doctor was well out of the fight by this time.

Illinois law is a little different, it would seem, so no problem with differing interpretations there. Illinois has some rather interesting laws as it is, as does your state. Image

Happy Holidays,

Lee Darrow, C.Ht.


Top
 Profile  
 
PostPosted: Fri Dec 28, 2001 4:01 pm 
Offline

Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
Lee,

Defense of an assault victim is recognized in Massachusetts. We just don't have many cases reported.

There is a special statute for school teachers with reference to school discipline.
Mass. Gen. Laws Chapter 71, section 37G deals with the right of the teacher to use force to protect self and pupils.

I really believe that a person engaged in EMS service would by the nature of his duty, be expected to aid the victim even to the extent of force intervention.

The usual rules of reasonableness in the force used and the duty to refrain once the assault ceased would all be aplicable.

The frequent attacks on fire fighters and EMS employees are events that would well be the subject of judicial notice. Your EMT friend would certainly qualify in this state to be able to have requests for rulings or jury instructions permitted in his plea of self defense for the benefit of others.

Codification or statutory exemptions or rights would and should be utilized to exonerate or protect persons who perform public service, if only in the crime prevention intervention area or in the performance of ones duty.

We usually see codfication in this state in subjects dealing with technical issues, e.g., building codes, Uniform Commercial Code, and other places in the business sector where code details are useful and are often nation wide.

Rick Wilson's example of Canadian Penal Codes, although well worded and helpful, are nevertheless subject to interpretation, by subjective or objective tests and on subtle differences in the facts of each case.

In the final analysis, we always are confronted with the "reasonableness of the action taken" doctrine and the weighing of the evidence. These seem to be the constant rules applied by every jurisdiction in any civilized venue.

The case law decided, in the absence of codification, will often decide the differences in each case.

An example of that is in many cases the propensity of a person toward violence, can be admitted in the trial.

Law professors and authors often cite the Model Penal Code which is a fine example of codification and I am sure is used by judciary in difficult cases. However it is not an official citation for pleadings.

The most we can do is apply what we know about the law of the jurisdiction applicable, and how we can apply "reasoanble rule standards" to the facts in each case.

And to every piece of evidence:

Is it reaonsonable?

Is it useful? ;to defense or proof of your case.

Alan K


Top
 Profile  
 
PostPosted: Mon Jan 14, 2002 7:49 pm 
Offline

Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
This post is light of the Thomas Junta manslaughter case.

When I first published the post dealing with establishing a right of self-defense, I was not aware of the Commonwealth v. Junta trial being ready for trial in January. That was pretty fast for a homocide case; the crime happened in July of 2001.

The purpose of this forum subject was to alert readers that the self-defense plea required enough evidence, which if believed, would entitle the defendant to have a jury charged (instructed) in the law of self-defense.

We observed in the Junta case in the very first hours of deliberation, the jury requested a written script of the jury instructions as made by the judge on the law of self-defense. The judge did not do this but did furnish a copy of the audio tape.

They also wanted more information concerning "reasonable doubt" concerning evidence of guilt, later in the trial.

We read statutes, regulations and codes, but how they are applied, what makes up a standard are all decided in a court of law.
On appeal we learn about the application of the law by the decision which will incorporate the arguments of the parties, the evidence, and the application of the law from prior cases (stare decises).

The Junta case was a prime example of the application of the law of self-defense.

First reported was the bully image of a 270 pound man throwing a man weighing some 100 pounds less, to the ice, pinning the shoulder of the downed man and reapeatedly striking him to the neck resulting in death by the rupture of a major artery.

Publicity was non stop, with Augustine Costin, father of the victim, being interviewed by Matt Lauer on national television the day the jury was being impanelled. From this we learned that Costin had a prior record for some sort of misconduct and had served jail time. He was also charged with domestic violence.

The bully image began to dilute with evidence of hostility of Costin, and the conflicting evidence of witnesses who only saw segments of the action and differed on what was seen during the fatal final conflict.

If there is any appeal, the courts will review the reported evidence and apply the law.

We thus learn from the cases and the foregoing posts are at least a beginning.

Alan K


Top
 Profile  
 
Display posts from previous:  Sort by  
Post new topic Reply to topic  [ 11 posts ] 

All times are UTC


Who is online

Users browsing this forum: No registered users and 1 guest


You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot post attachments in this forum

Search for:
Jump to:  
cron
Powered by phpBB® Forum Software © phpBB Group