Assault

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Assault

Postby Van Canna » Sat Feb 14, 2004 5:44 am

Alan,

In the back lot incident, two of the three punks who ambushed our Uechi brothers in the dark area, stated "Let's shoot this mother F*ucker" placing one of the two in fear of his life.

Then after shocking him with these words, proceeded to pummel him with a barrage of punches, knocking him down, dragging him fifty feet into the middle of the street, pulling his arm out of its socket in so doing.

Question: Had our brother had a gun, would he have been legally justified in pulling it and shooting the punks when first threatened ?

The DA has charged the punks with armed robbery on the strenght of that threat, even though no gun was found.
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Postby Gene DeMambro » Sat Feb 14, 2004 1:58 pm

This post has prompted me to write another, possibly related scenario. I hope you don't mind...

Say there's a clerk behind the register at a store, or a teller at a bank or (in my case) a druggist behind the colunter at the corner drug store. Someone passes a note that says " I have a gun and I want all your money" or "I have a gun and I want all your Oxycontin and morphine".

Absence any other threat, can the victim draw his gun?

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Postby RACastanet » Sat Feb 14, 2004 3:08 pm

In Virginia, if you believe that you or an innocent person is in danger of serious bodily harm you may respond with deadly force. You are under no obligation to be shot or beaten before responding. However, if the perp flees you cannot pursue.

A few years ago, 2 or 3, a 'stop and rob' owner did pursue and fire on a perp, badly wounding him. There had been a recent rash of armed robberies in the area and this person had been robbed before. Even though his actions did violate the state law, no charges were filed. In a short time period there were two other instances of shop owners firing on perps and for quite a while thereafter there were few crimes against convenience stores.

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Postby Gene DeMambro » Sun Feb 15, 2004 6:42 am

What set of events sets the stage for a threat of harm?

And is passing a note to a bank teller, or cashier or pharmacist sufficient enough, absence any other words or actions, to establish a threat of harm?

Where can we read more about Virginia law, Rich? ARe there cases we can look up or laws we can reference?

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mass state law

Postby michael29 » Sun Feb 15, 2004 4:35 pm

Hey Gene,

Have you ever read the state law concerning Martial art weapons ?

Specifically,Chapter 269, section 12, part iv , title 1.

I have contacted GEM on this, and will contact Alan K.

To make a long story short, I wrote the Gov, and asked " What is more dangerous, A GUN, or two sticks and a chain.

What do you think ?

It baffles my mind that we can walk down the street with a GUN, and be legal.

But get caught with TWO STICKS AND A CHAIN, and get arrested.

This law must change and I am geting as many people invloved.

I would like to hear other peoples opinion on this. ( Although I must say, I do not believe, one would answerfor the two sticks
Gene DeMambro wrote:What set of events sets the stage for a threat of harm?

And is passing a note to a bank teller, or cashier or pharmacist sufficient enough, absence any other words or actions, to establish a threat of harm?

Where can we read more about Virginia law, Rich? ARe there cases we can look up or laws we can reference?

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Postby Gene DeMambro » Sun Feb 15, 2004 5:55 pm

Yes, Michael, I did happen upon your post on Panther's "Tough Issues" forum. I also replied to it as well. And I am familair with the law you mentioned and have even posted a topic or two about recent case law regarding knives in the Commonwealth. If you haven't already done so, may I invite you over to Panther's forum, where you will find the "the law concerning weapons of the martial arts" fourm you started, as well as my replies?

It might seem unfair that we can at least apply for a gun permit (and it might be denied), but we can't apply for a nunchaku permit. But, the state has that power and that's what the chose to do with it....

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Waiting for a an expert answer to these questions...

Postby gmattson » Sun Feb 15, 2004 6:10 pm

However,

Question: Had our brother had a gun, would he have been legally justified in pulling it and shooting the punks when first threatened ?


If someone says "lets shoot the Mother%$%&*, I would treat the threat the same way as having the BG quietly pulling his gun and aiming it in my direction.

Same for the note in Gene's example.

Not sure how the law would treat these threats. I'm sure the punks' lawyers will argue that the these innocent boys were just "joking" and since no weapon was found on them, should not be charged with a crime.

Had the victims been able to shoot/kill these poor boys, who were simply "panhandling" using the very effective "Brockton method", the victims would quickly become the criminals.

Have those poor, misunderstood boys gone to trial yet? Wonder if the victims will be sued for false arrest. . .
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Postby michael29 » Sun Feb 15, 2004 6:36 pm

Hey Gene,

Thanks for the response.

Do you support a movement to change the law ?

How about you GEM, or any other Mass resident ?

How can we allow the ridiculous to govern our state ?
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Postby RACastanet » Sun Feb 15, 2004 7:25 pm

Gene: Here is a link to much of the weapons laws for Virginia:

http://leg1.state.va.us/cgi-bin/legp504 ... d+18.2-308

If you read the laws there is little to guide you as to when it is ok to use your firearm. It still comes down to the 'reasonable man' discussion. In Virginia, drawing your firearm in the situations mentioned above would likely be considered reasonable in Virginia.

I do not have any info on case law regarding such events.

Virginia issues 'concealed handgun' permits, not concealed weapons permits. Florida on the other hand, issues a 'concealed weapon' permit so a knife can be carried concealed. However, most states specifically note flails as being illegal.

Click in this link to a great site regarding concealed handguns and weapons:

http://www.packing.org/

I hope thie is helpful.

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Postby Gene DeMambro » Sun Feb 15, 2004 7:59 pm

Thanks Rich,

Sounds like the info I needed!

Michael,

Truth be told, I can certainly see where such weapons might need to be banned. I'd much rather see a more relaxed gun statute, perhaps even with statewide standards that take the provincialism and parochialism away from the local chiefs of police. But that's just me....

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Postby RACastanet » Sun Feb 15, 2004 8:34 pm

Gene said: "perhaps even with statewide standards that take the provincialism and parochialism away from the local chiefs of police. But that's just me...."

Gene, you descibed the intent of 'shall issue' laws and statewide elimination of grandfathered local laws. Very few localities in VA have any state approved modifications to the shall issue laws so a gun owner does not need to worry much about violating a local ordinance.

One law that is under scrutiny right now prohibits the carrying of a concealed firearm in a restaurant that serves alcohol. However, open carry is permitted. I'd like it to read the other way around.

The state also allows concealed carry in parks, state buildings, county buildings (except schools, churches in session, courts and jails/prisons) and stores that sell alcohol for consumption off premises.

The national parks in VA do override the VA laws and do not allow firearms except for hunting.

As you go from state to state the laws vary sufficiently that a review is in order before carrying there. The website I noted is invaluable in that regard. For instance, VA is an open carry state requiring a permit only for concealed carry. FL completely disallows open carry, but getting a concealed carry permit is fairly easy.

FL also will grant a permit to non residents, which VA will not. And while VA has reciprocity with only a few states, FL has it with about 25. So, at some point, I'll apply for a FL permit. With the FL and VA permit I'll be allowed to carry concealed in 28 states!

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Postby Van Canna » Sun Feb 15, 2004 8:40 pm

Not sure how the law would treat these threats. I'm sure the punks' lawyers will argue that the these innocent boys were just "joking" and since no weapon was found on them, should not be charged with a crime.


A serious problem, to be sure, and one to expect anytime “deadly force” is brought to the table.

“Deadly force” is defined in some interesting ways:
The firing of a firearm into the air, even as a so called “warning shot” constitutes the use of deadly force as a matter of law.


The defendant had been involved in a near collision while driving and both drivers had pulled over to exchange their heated views about the matter.

At some point the conflict escalated to the point where the defendant waved an unloaded, holstered pistol in the air for the victim to see and then drove off.

Defendant was arrested and charged with aggravated assault while armed with a firearm.



And, it is my understanding that a reasonable man fearing for his life and fearing that the threatened harm was imminent/immediate, is justified in “assaulting” [pre-empting] with deadly force. [The drawing of a pistol] or first strike.
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Postby Ron Klein » Wed Feb 25, 2004 3:45 pm

I noticed that this particular thread was left hanging. I am not currently involved in the practice of criminal law, however, our firm does focus on civil liability issues which is an important consideration in addressing the question George/Van raised. In this post I want to give you some things to think about. I will also add that my time in the County Prosecutor’s Office had an impact on how I instruct martial arts. I believe that anyone who engages in training and teaching martial arts should have a realistic understanding of liability, and ethical and legal responsibilies to themselves, their families and students. Also, all of my citations concern Michigan case law, the bolded phrases are my emphasis.

Defenses

The person or persons who used deadly force (in this case a firearm) would raise the defense of self-defense or defense of others (under the facts of this thread,their friend). In Michigan the analysis would follow that…"A claim of self-defense or defense of others first requires that a defendant has acted in response to an assault." Detroit v. Smith, 235 Mich.App 235, 238; 597 NW2d 247 (1999). "A simple assault is either an attempt to commit a battery or an unlawful act that places another in reasonable apprehension of receiving an immediate battery." People v. Adrian Terry, 217 Mich.App 660, 662; 553 NW2d 23 (1996).

Standard of Proof

The standard of proof in criminal cases is “beyond a reasonable doubt,” and rests with the State to demonstrate. "Once evidence of self-defense is introduced, the prosecutor bears the burden of disproving it beyond a reasonable doubt." People v. Fortson, 202 Mich.App 13, 20; 507 NW2d 763 (1993).

Reasonable Belief.

Proving that a person’s actions were “reasonable” under the circumstances is driven by the facts of each case. When a defendant uses deadly force, the defendant acted in lawful self- defense if he honestly and reasonably believed that he was in danger of serious bodily harm or death, and the defendant only used the amount of force necessary to defend himself and was not the initial aggressor. People v. Heflin, 434 Mich. 482, 502, 509; 456 NW2d 10 (1990).


Element of Necesity.

One factor that is considered is the decision of the defendant to use deadly force. In fact one element that is considered in deciding if the defendant’s actions were “reasonable” is the demonstration that he tried to avoid using deadly force and is it clear that the use of deadly force was necessary. This of course is again fact driven and dependent on circumstances. In Michigan; "The necessity element of self-defense normally requires that the actor try to avoid the use of deadly force if he can safely and reasonably do so, for example by applying nondeadly force or by utilizing an obvious and safe avenue of retreat." People v. Riddle, 467 Mich. 116, 119; 649 NW2d 30 (2002). This is because if an attack can be safely avoided, the use of deadly force is not necessary. Id. at 129. However, a defendant is not "required to retreat from an attacker who he reasonably believes is about to use a deadly weapon." Id. at 119. Under such circumstances, as long as the defendant honestly and reasonably believes that deadly force is necessary, "he may stand his ground and meet force with force." Id. (Emphasis mine).

YOUR jury will be given instructions!

When preparing a case for trial a Prosecutor carefully studies jury instructions and tailors proofs to them. For non-attorneys reading standard jury instructions can give a feel for what needs to be unambiguious and clearly demonstrated to a jury. In the case of self-defense and the use of deadly force the instructions to the jury, CJI2d 7.16(1) reads: "A person can use deadly force in self-defense only where it is necessary to do so. If the defendant could have safely retreated but did not do so, you may consider that fact in deciding whether the defendant honestly and reasonably believed [he / she] needed to use deadly force in self-defense."


What is deadly force?

In Michigan case law, a person is deemed to use deadly force "where the defendant's acts are such that the natural, probable, and foreseeable consequence of said acts is death." People v. Couch, 436 Mich. 414, 428 n 3; 461 NW2d 683 (1990), citing People v. Pace, 102 Mich.App 522; 302 NW2d 216 (1980) (defining "deadly force" in the context of self-defense). Whether death is a natural, probable and foreseeable consequence of a defendant's acts depends on the facts of the case.

Once the prosecution presents evidence from which the jury could conclude that "death" was the "natural, probable, and foreseeable consequence," i.e., that defendant used "deadly force," then whether defendant had a duty to retreat becomes a material issue in the case. As discussed above, this issue then will relate to whether the use of such force was reasonable.


Summary of Michigan case law.

The Michigan Court of Appeals in a recent decision, People v. Finley,2003 WL 22976105, Mich.App., Dec 18, 2003, summarizes Michigan case law regarding claims of self-defense.

“A claim of self-defense requires proof that the defendant acted in response to an assault. Detroit v. Smith, 235 Mich.App 235, 238; 597 NW2d 247 (1999). As our Supreme Court recently explained in People v. Riddle, 467 Mich. 116, 142; 649 NW2d 30 (2002):
We hold that the cardinal rule, applicable to all claims of self-defense, is that the killing of another person is justifiable homicide if, under all the circumstances, the defendant honestly and reasonably believes that he is in imminent danger of death or great bodily harm and that it is necessary for him to exercise deadly force. As part and parcel of the "necessity" requirement that inheres in every claim of lawful self-defense, evidence that a defendant could have safely avoided using deadly force is normally relevant in determining whether it was reasonable necessary for him to kill his assailant. However, (1) one who is without fault is never obligated to retreat from a sudden, violent attack or to retreat when to do so would be unsafe, and in such circumstances, the presence of an avenue of retreat cannot be a factor in determining necessity; (2) our law imposes an affirmative "duty to retreat" only upon one who is at fault in voluntarily participating in mutual nondeadly combat. . .” People v. Finley, 2003 WL 22976105, Mich.App. at 1.

Did the victims reasonably believe, based on the analysis above, that they were in imminent danger of death or great bodily harm? In addition to the words of the perps. regarding shooting the victims, were there other actions that reinforced the victim’s beliefs?

The argument is made to a jury and the burden is proof beyond a reasonable doubt.

If one of the injured perps or a deceased perp’s estate brings a civil action for injury or wrongful death, the burden is shifted to a preponderence, that is, “Was the action unjustified?” by weighing the evidence and tipping the balance (i.e. greater than 50%). There is more, but that is basically it.

I hope this is useful and note that I have ONLY cited Michigan case law.

Take Care,

Ron Klein

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Postby Norm Abrahamson » Wed Feb 25, 2004 6:53 pm

Whether use of deadly force in response to a threat is a generally matter of each state's common law rather than specific statutes. The Michigan cases posted were a good example as to how a court will view and instruct a jury regarding "reasonableness" in using deadly force. A general rule is that deadly force to protect a person may be allowed. Deadly forct to protect property is not. A Massachusetts store owner who set a booby trap where a rifle shot an intruder was found guilty of murder or manslaughter. The store was empty and he was not in any danger of imminent harm.

In the Brockton parking lot incident, where several assailants physically attacked two men and actually announced an intent to shoot him, I would argue deadly force would be legally justified. That doesn't mean that the shooter wouldn't be charged.

One of our attorneys on this list had a series of posts last year about his use of self defense at a criminal trial. It was quite illuminating.

Sincerely,

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