Discussion in 'General Self Defense' started by Bill Mattocks, May 3, 2017.
It's not uncommon for investigators and prosecutors to withhold info from press.
That's quite interesting. Surely the fact that he got out of the car puts you in grave danger (after all he isnt getting out to offer you a jelly baby) and there is no way to know until the assault has started how severe the attacker intends to make it.
He could plan on just breaking your nose then getting back in his car and driving away, or he could intend to beat you senseless and stomp on your head. How much leeway does US law give? Like I say, you can't really wait until the beating starts before you get a good gauge of how bad he intends it to be.
I don't think it's written in UK law, but I remember seeing something somewhere that said it was accepted that whoever exited their vehicle first in a road rage incident is responsible for whatever happens, the idea being if they had stayed in the vehicle nothing would have happened. Don't quote me on that though
A broken nose does constitute great bodily damage....maybe. Does cartilage count as bone in the eyes of the law?
Don't know much about US law I'm afraid.
yes this is the jury instructions. but law is not only Statutory it is also case law. since i am not a lawyer and dont have access to dozens of files we can assume that the jury instructions are the guidelines for case law. it would be fair to assume that case law would follow the guidelines.
i am not implying that a larger person would never be justified in self defense, that is not what i said nor what i implied. what i said was that a disparity of force is a factor. you will notice that the concept is cited under the "excessive force" description. we are discussing a case where it could be said that the defendant used excessive force to deal with the assailant. that is what you asked,
i proposed that if there was a disparity of force ,,,the jury would take into consideration these factors in determining if in fact he was justified in his actions.
it should be remembered that statutory law is what will get you arrested,, it is case law that will determine your fate.
I find it troubling how much road rage is on the rise.
Yeah Buka, have to be careful out there.
In Australia we have a GBH. I have never known a nose to qualify. Teeth can.
I am with DD on this one as I need more facts to form a more accurate opinion.
Do you think it's a reflection on society in general? Or just more people on the road? Never saw much, if any, of it years ago.
More a reflection on the times. It has always been there but I believe it is on the rise.
Recent news articles:
PD: Man shot multiple times during apparet road rage shooting
FHP: I-95 shootings in Palm Beach County rare and rarely random
19-year-old arrested following road rage incident in St. Johns County | Depend On WOKV - Jacksonville's News, Weather, and Traffic | www.wokv.com
No arrest in 15-year-old's slaying in San Francisco Sunset District; family offers forgiveness
Policeman kills driver in Antipolo road rage - The Manila Times Online
Car Crash Leads to Shooting in Bainbridge Sunday Night
Greeley police release new photo of suspect vehicle in road rage crash
Got them here:
road rage - Google Search
Disparity of force is one of the factors that goes into the assessment of reasonableness. The greater the difference in physical ability due to size, health, injuries received in the attack, gender/age, etc., the more force would be reasonable for the person on the small/weak/hurt side of the equation. Extreme example for consideration -- a 91 year old Iwo Jima Marine veteran is going to be more justified in using greater force than a 19 year old Marine who just got back from Afghanistan. Sure both are "Marines" and combat vets, but I think the 19 year old is probably going to be a lot more physically capable, no? Take two 19 year old Marines, one who lost a leg on deployment, and the other who came back fine -- again, the guy with one leg is probably going to be able to articulate a greater level of force in the same attack.
Self defense is often still not a statutory issue; it's a justification for having committed what would otherwise be a criminal act. The person claiming self defense is saying that they did indeed batter or even kill their victim -- but the victim had it coming because if the defendant didn't do something about it, they would have been hurt/injured/badly injured/killed (depending on how much force was used).
Again -- self defense is an affirmative defense to the crime of assault & battery at some level. A person is generally justified in using that force reasonably necessary to safely resolve the situation. It's not a stair step, ladder, or precise equation. It's about articulation. Many factors go into deciding if a "reasonable person in like circumstances" would have found that level of force reasonable and appropriate. Those factors can include relative size, health, physical condition, injuries, the level of force being presented, and more. The better the defendant can explain what made them feel that level of force was needed and appropriate, the more likely they are to prevail in their claim.
How well can you explain why you had to do what you did. That's what it boils down to.
Moving to a road rage incident like this, you have to be able to paint the picture that you feared some significant, life altering injury or death from the guy's attack, that he had the ability, means, and intent to do you harm, and that lesser force was precluded by the circumstances. Obviously, a guy coming out, fist clenched, yelling and screaming after driving aggressively to get to you... that certainly paints a picture that he intended to do you harm. It would take quite a bit to overcome that presumption, in a case like that -- but it may not justify lethal force. An average unarmed couch potato who does "kara-TEY" twice a week for an hour isn't likely to pose much of a physical threat to Dwayne "The Rock" Johnson, right? But The Rock jumps out, pissed off, and charges most of us? Yeah, we can probably support that we were pretty damn scared that he'd hurt us badly if he laid hands on us, right?
Road rage is a symptom. We've got a scary high level of general rage, hostility, and division in the US that I personally have never seen before. Add to that more and more people who can't work out problems between themselves, and who feel entitled constantly, who can't freaking TALK to each other because they're so used to the internet and social media instead of actual interaction... Yeah, it's a fun mess, huh!
With regard to self-defense and use of deadly force laws in the various states of the US, most boil down to the same basic elements. They're pretty simple.
1) You have the right to defend yourself against unlawful assault by another person.
2) You may have the right to use deadly force to defend yourself (in some states, also your property, home, or others) if a reasonable and prudent person would believe that they were in imminent danger of losing their life or suffering grave bodily injury.
Now, as I've said, I'm not a lawyer. This is not legal advice. But my *opinion* is that although the above is pretty simple, it's when we get down into the weeds that people seem to lose the thread.
There are no hard and fast rules about what a reasonable and prudent person would believe for a written-out list of various things which might happen to you. "Well, you see, if he's a big guy and he has tattoos and has been known to fight with others and his brother's name is Larry and it's the 3rd Tuesday in the month, then yes, you may draw your legal and licensed concealed sidearm and make his head look like a canoe."
What happens is the police investigate and take statements from witnesses, gather evidence, and it gets turned over to detectives and/or prosecuting attorneys. The DA may decide that the incident is a clear-cut case of self-defense and choose not to pursue it. Or the DA may convene a Grand Jury and put the question to them whether or not to indict. And in either case, if the DA prosecutes, then the question of 'reasonableness' becomes a question for the judge or a jury depending on the type of trial. The defense will attempt to prove that the shooting was 'reasonable' and the prosecution will attempt to prove it was not. The prosecution has to prove their case, the defense does not have to prove innocence; they only have to be able to cast 'reasonable doubt' (there's that word again, different context) on whether or not the shooter is guilty.
The jury can consider all kinds of things, up to and including, yes, disparity of force. But here is where people tend to get lost, IMHO. There is no 'disparity of force' statute that I am aware of, anywhere. It's a jury instruction. It's an argument that will be raised by the defense or the prosecution (whichever it tends to favor in any given circumstance). It is not a 'rule'. It is not a 'law'. It's something to be considered during a trial and potentially during jury deliberations.
This is why people like Massad Ayoob write about such things; because they can matter to a judge or jury. It's something that anyone who goes about armed should understand; when they are and when they are not allowed to use deadly force to defend themselves.
A jury can do all kinds of funny things. One day, a jury can decide that a 130 pound many who was shot was reasonably killed because the 260 pound man who shot him was in fact in reasonable fear of his life, despite the disparity in size. Another day, another jury, and they might come to the opposite conclusion.
This is what happens in courtrooms all across the US. The law tries to remove arbitrariness from the results of criminal legal proceedings, but there is no way to do that. Bad lawyers, bad defendants, bad juries, even bad judges can all make what seems like an open-and-shut case of self-defense into a serious crime - or vice-versa.
None of this bothers me overmuch. What I guess gets up my sleeve is when someone reads something and decides that's 'what the law is'. No, it is not what the law is. The law is simple. People fitting the law to actual events in a courtroom, that's hard. But there are no hard-and-fast rules for how that is going to end in any given case.
Never thought of it as a symptom, that makes a lot of sense. Kind of scary, too.
I dont want to press the issue and turn it into an argument or go off topic, so at this point we will just have to agree to disagree.
Sounds pretty much like the UK, but I am thinking more in terms of shooting them as that is pretty much a choice of lethal force or don't fire.123
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