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.
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).
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.