self defense and reasonableness

R

Richmond

Inactive
In addition to lecturing on the law and self-defense, I have handled literally hundreds of self-defense cases, both where self-defense is an absolute, affirmative defense and where self-defense plays a mitigating role. I have tried many self-defense cases to juries, including murder cases. There are really two things to remember:

1. Reasonableness
2. Every case is unique on its facts

I posted some ideas about this on THR a while ago, and am re-posting much of that along with some additional comments. I intend this as educational rather than legal advice, of course.

Self-defense cases are highly fact specific. All sorts of factors need to be taken into account. The jury will hear the facts. Then they will be instructed in the law. Since I do a state court practice, here is an example of what they are given in MN:


CRIMJIG 7.05: "Self Defense--Causing Death."
No crime is committed when a person takes the life of another; even intentionally if Defendant's actions -- action is taken in resisting or preventing an offense which Defendant reasonably believes exposes the Defendant to death or great bodily harm.
In order for a killing to be justified for this reason three conditions must be met. First, the killing must have been done in the belief that it was necessary to avert death or great bodily harm. Second, the judgment of the Defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances. Third, Defendant's election to defend must have been such as a reasonable person would have made in light of the danger perceived and the existence of any alternative way of avoiding the peril. All three conditions must be met, but the State has the burden of proving beyond a reasonable doubt that the Defendant did not act in self-defense.

CRIMJIG 7.06 SELF DEFENSE--DEATH NOT THE RESULT
Defendant is not guilty of a crime, if defendant used reasonable force against ______ to resist (or to aid ______ in resisting) an offense against the person, and such an offense was being committed or defendant reasonably believed that it was.
It is lawful for a person who is being assaulted and who has reasonable grounds to believe that bodily injury is about to be inflicted upon the person, to defend from such attack, and in doing so the person may use all force and means which the person believes to be reasonably necessary and which would appear to a reasonable person, in similar circumstances to be necessary to prevent the injury which appears to be imminent.
The kind and degree of force which a person may lawfully use in self-defense is limited by what a reasonable person in the same situation would believe to be necessary. Any use of force beyond that is regarded by the law as excessive.

(The rule of self-defense does not authorize one to seek revenge or to take into his own hands the punishment of an offender.)

I have been on TFL recently – after surfing for years, I am one of the THR “refugees” realizing the wisdom of maintaining two “homes” in the event of service issues such as those that have been plaguing THR recently. I posted in another thread regarding a series of posts in several threads that purport to give erroneous “advice” regarding the law and self-defense. These posts appear to contain a cut of a portion of a MO statute that deals with self-defense. You can find and read a more complete version of the MO statute here:

http://www.moga.mo.gov/statutes/chapters/chap563.htm

That gives an idea of what the statute reads like - I don't promise that it is the latest, revised edition, simply an exemplar.

Frankly, MO is lucky to have an attorney expert in self defense law and 2nd Amendment issues: Kevin L. Jamison. If you are a MO CCW or, like I do, travel there, do yourselves a favor and avail yourself of his advice rather than trusting your judgment in life or death matters to Internet trolls.

http://www.wmsa.net/Books/Missouri_Law.htm

While I don’t practice in MO, I have lectured and consulted there. In MO, a sample jury instruction might look like this:

In order for a person lawfully to use force in self-defense, she must reasonably believe she is in imminent danger of harm from the other person. She need not be in actual danger but she must have a reasonable belief that she is in such danger.

If she has such a belief, she is then permitted to use that amount of force that she reasonably believes to be necessary to protect herself.

But a person is not permitted to use deadly force, that is, force that she knows will create a substantial risk of causing death or serious physical injury, unless she reasonably believes she is in imminent danger of (death) (or) (serious physical injury) (or) (forcible rape) (or) (forcible sodomy) (or) kidnapping).

And, even then, a person may use deadly force only if she reasonably believes the use of such force is necessary to protect herself.

As used in this instruction, the term "reasonable belief" means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. (This particular pattern instruction also deals with battered women’s syndrome/prior abuse as how they may affect perception of reasonableness; both MN and MO allow expert testimony on this syndrome).
 
how it works

Here is the idea - Having heard the testimony, with the instruction of law in hand, the jury has to decide. Basically, they are deciding if the defendant acted reasonably.

Now, a previous thread I wrote on THR dealt with size disparities, and how those facts might fit in the analysis. These help illustrate how a variety of factors may affect reasonableness.

If I am trying a case where my client is a great big man, I need to deal with that factor, not present the case as if my client were small, or elderly. The physical abilities of the individual, in comparison to the threat faced, are pertinent.


Consider: Assailant (A), angry, red faced, screaming and spraying spittle, rushes you and screams in your face: "I'm gonna mess you up!"

Do you have a right to defend yourself?

Does it matter if the assailant is:
a. your 7 year old nephew
b. Iron Mike Tyson


Does it matter if you are:
a. a heavyweight professional boxer
b. a teen beauty contest winner
c. frail and elderly

How do the factors above bear on whether you were reasonably afraid and whether your response was reasonable.

Does it matter if this happen:
a. in your living room, and you just made a firm decision about what TV program was going to be on
b. 2:30 am, dark street, Detroit, and you never saw this sucker before!

Also, remember that most people, and most jury members, tend to be quite naive about the realities of self-defense and, in non-deadly cases, fighting and interpersonal combat. They need it presented to them properly. Size disparity will be a factor that will be looked at, first by the investigating officers, and then by a prosecutor, perhaps finally by a jury. Basically, it all relates to reasonableness.

So, saying it (size/strength) "would" make you guilty is not right - but knowing it will be a factor is.

Have I done big guy defending against little guy cases? Sure - one that comes to mind was an acquittal of a college defense back about 230, assailant was about 150. Note: GF was present! Was the size disparity discussed? Of course it was. Did the jury find it dispositive? Obviously not.

This goes the other way, as most big people know - they can seem threatening or frightening, where smaller person would not.

Take a look at yourself and evaluate how you would be perceived in a self-defense scenario. I know in my case, you would evaluate whether I was reasonably frightened and whether I responded reasonably in light of not just size (5-9, 175) but the fact that I have trained daily in martial arts since I started boxing as a young teen, have black belts in several arts, still train every day, teach self defense including legal aspects and verbal de-escalation, etc., I deal with violent crime scenarios a lot, have actually been a fair number of "non-sporting altercations" (mostly in my misspent youth), etc. I think it is fair to say that most people would think that my "fear threshold" should be a lot higher than many folks, that I should be able to measure my response better than someone with no experience or background.

This does not mean that my hands are "deadly weapons that I have to register". But that stuff would come up and be discussed. How would a “reasonable man”, in my position, act?

The issue of a 90 year-old victim and a 20 year-old assailant would have to be looked at in light of the physical disparity/risks, as to what was “reasonable”. Sympathy and emotional appeal of the defendant will vary from another case. The end result may be quite different than if it was me – or a 25 year-old MMA fighter.

In tort law, as well as in areas of criminal law such as self-defense, the "reasonable person" is a hypothetical individual who is intended to represent a sort of "average" citizen. The ability of this hypothetical individual is consulted in the process of making legal decisions. The question, "How would a reasonable person act under the same or similar circumstances" performs a critical role in legal reasoning”?

It also occupies a critical role on many 1st year law exams!

Taking something out of a statute or case and citing it out of proper context as “The Law” will likely lead to serious misunderstanding. The term “black letter law” is used to describe such statements of technical rules. In reality, however, the law is actually more conceptual. For example, to edit the type of jury instructions given above, I argue specific wording and often file complex arguments of authority. The end result will be a tailored jury instruction for a particular case. There will be case law that interprets the “black letter” statement, and understanding the key cases, not just what they decided but why, is important.

I often feel somewhat reluctant to post “lectures” like this, but we are dealing with the most serious concepts here – literally life and death. In addition, what you post here may get read back to you in court if you are involved in a self-defense incident. Finally, on any of the firearms / 2nd Amendment boards, what we post represents the firearms community. Posting inappropriate “advice” reflects poorly on the entire community, and can be used to portray us all in a very negative light.
 
Richmond: thanks for posting this. I've often wondered about the following scenarios:

I'm 64 but I'm fairly good sized and not at all weak.

However, say I'm walking down the street and I'm attacked by three youths who, even though they aren't armed, stand to beat me badly, perhaps fatally, what then? If I draw my pistol and shoot them it looks pretty dicey.
 
I'm 64 but I'm fairly good sized and not at all weak.

However, say I'm walking down the street and I'm attacked by three youths who, even though they aren't armed, stand to beat me badly, perhaps fatally, what then? If I draw my pistol and shoot them it looks pretty dicey.
Click to expand...

I used to train mixed martial arts for a while and my coach, who like to teach from a self defense perspective, would also tell us to NEVER get in a fight with more then one person if we could help it. Reason being is that it's very dificult to deal with multiple opponents even if they are smaller then you and the risk of serious injury goes way up.
 
Great post! My main takeaway is that we all need a good attorney we can call if necessary.

I clicked on the link for MO law. Some of the most arcane writing I've seen, example:
563.031. 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he reasonably believes such force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such other person, unless:

(1) The actor was the initial aggressor; except that in such case his use of force is nevertheless justifiable provided
Click to expand...
Huh? Translate: If someone gets in a scuffle, litigate! If "three youths" bump a 64 year old guy for spare change, and he tells them to "get lost, punks!", who is the initial aggressor when things escalate?

I like Washington's laws on the use of force because they appear simpler to me. (RCW 9A.16.020). But when it comes down to it, the "reasonableness" criteria are going to be applied whether the text of the law is straightforward or Byzantine, like MO.

Note to self: make sure atty's # in wallet.


Again, thanks, Richmond, for the great post.
 
One of the baddest dudes I ever saw was 4'10". His street name was the Tasmanian Devil after the cartoon character. He lived in 29 Palms, which is the site of a Marine base, and his hobby was picking fights with Marines on the weekends. He seldom if ever lost. One of the other people I knew made the mistake of pulling a knife on the TD, who promptly climbed up his chest and beat about half his teeth out. The moral of this story is one doesn't have to be big to be dangerous.
 
THANKS, for the excellent posts. I've tried to interject this type of info on another forum, and was met by a lot of nay-saying. There's was a "shoot everytime till there dead" mentality.

With great power (weapons on our person or in our home or vehicle) comes great responsibility.

My simple mantra, is 1. Ability, 2. Opportunity, and 3. Placed in jeopardy.

Thanks again, Ken
 
Richmond:

Thank you for the informative post. I would ask you or anyone experienced for their opinion on the following if you would be so kind:

1. If you did shoot an attacker that was assaulting you with a knife or club, is it necessary to tell anyone that you are a black belt or an amateur boxer? Doing so would seem to me to bring an argument against your decision that doesn't need to come into play.

2. After a self defense action, I have always advocated telling the responding officer everything upon thier arrival so that they have all the facts to look at in your favor while making a decision (of course I am a veteran LEO, so that's just how I see it), but I believe it is easier to avoid criminal and civil litigation if the Grand Jury 'no-billed' your case or the investigating officers declined to file a case in jurisdictions where they don't use a grand jury.

Thoughts on this?
 
Good stuff. The whole idea that every trial is a unique situation seems to be lost on a lot of people. Part of why our scenario discussions here are rather useless IMHO is due to the fact that there's never any way to factor in all the variables.
 
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