Can I claim self-defense if.......

Discussion in 'General Self Defense' started by IcemanSK, Mar 27, 2012.

  1. IcemanSK

    IcemanSK El Conquistador nim!

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    Let's say I initiate a fight with someone, & during the course of the fight they get the better of me. But what my opponent doesn't know is that I have a gun. When he's getting the better of me, I pull my gun & shoot & kill him.

    Can I claim self defense in a court of law later? Do I have a case?

    We've got a few lawyers here. I'd love to hear their thoughts as well as everyone else's.
     
  2. Cyriacus

    Cyriacus Senior Master

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    Well, this is just Theoretical, Im not a Lawyer.

    But wouldnt it be Manslaughter?
    Since it was Self Defense, but it was also Lethal Force. I cant remember if something can be Self Defense as well as Criminal, or if it has to slide right over to Manslaughter, or if Im saying Manslaughter and meaning something else.
    But Id be leaning toward Manslaughter.
     
  3. Dirty Dog

    Dirty Dog MT Senior Moderator Staff Member

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    I'm no lawyer, but I don't think a claim of self defense is likely to be convincing when, by your own statement, you started the fight.
     
  4. Jenna

    Jenna Senior Master

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    Non-legal pov: I think it also depends upon how you "initiated" the fight. If this was done by verbal affront or a push or shove and your opponent responded with disproportionate force then I guess that is mitigation. Or if he were verbally abusive and you punched him then that is a different matter. However, I think (I am sure I will be corrected) and but the proportion of the force used is of utmost importance also. If the level of force used in response to an aggressive action is deemed excessive then I think there is less mitigation for such an act. If you believe he has a gun, or a weapon, or you believe your life or safety is endangered then I think that is also mitigation. Also, what was your mental state. And that of your opponent. I think these things are also considerations. Interested to hear what the actual legal position is.
     
  5. Tez3

    Tez3 Sr. Grandmaster

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    I'd say it depended on whether there were any witnesses. If not you can claim anything you want. If there were it will be left to whoever decides on prosecutions ideas on what the situation was. Here, just having a gun, whether licenced or not, would have you charged for a start, I'd say it was than likely you would be also charged with murder as you wouldn't have used reasonable force to defend yourself.
     
  6. chinto

    chinto Senior Master

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    I would say it depends on how your states self defense laws are written and the level of force the other person was using... not a lawyer... but my best guess.

    In my state I would say NO, Unless he escalated to deadly force...choking or strangles or other deadly force. then... maybe.. but would be hard I think
     
  7. MJS

    MJS Administrator Staff Member

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    I'm no lawyer, however, I'd say that no, you would not be able to claim SD. Had the other guy attacked you first, and only if he was doing something that warranted you drawing a gun, then I might be able to see a cause, but otherwise, no.
     
  8. tshadowchaser

    tshadowchaser Sr. Grandmaster

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    You started the fight. You brought the gun.
    In most states I belive you are guilty of both assult and battery as well as manslauter at the least, being the one who started it all i would think that most jurys would find you quilty.
    I also am not a lawler
     
  9. Twin Fist

    Twin Fist Grandmaster

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    why do i think this is about the Martin shooting.....
     
  10. Josh Oakley

    Josh Oakley Senior Master

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    It probably isn't since there was no fight in that case.

    Sent from my ADR6350 using Tapatalk
     
  11. Bill Mattocks

    Bill Mattocks Sr. Grandmaster

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    IANAL, this is not legal advice.

    Let us first say that one can 'claim' self-defense in court if one wishes, regardless of the circumstances. Self-defense is a legal defense to mount. That does not mean it will be accepted by a grand jury, a jury, a judge, or a court. The accused can claim whatever they wish. It is up to the prosecution to prove beyond a reasonable doubt that the claim is untrue.

    As to whether or not one has a case, the issue then revolve around both the intent of the shooter and the actual actions taken by both parties, I think.

    For example; if the shooter intended to confront the victim, and a fight ensued, I would opine that the shooter would still have the right of self-defense. They may have initiated the contact, but they did not intend to fight the victim.

    If the shooter intended to fight the victim, but found themselves in a situation in which they were legitimately in fear of being killed, I would opine that they might still have the right of self-defense, but it becomes much more complicated. Was the motive of the shooter to cause the victim to put the shooter in fear of his life and therefore give him a 'legal excuse' to kill? In other words, was he luring the victim into a fight so that he could kill him, intended that outcome all along? That might be the case, but I suspect it would be hard to prove.

    It could also be hard to prove that the shooter started the altercation. Without eyewitnesses, it is one man's word against another. When one of the men is dead, there is little but forensic evidence to challenge the statement made by the shooter, which would tend to have to be taken at face value.

    But getting back to the issue of self-defense...

    There are too many variables to say that yes or no, a person engaged in a physical altercation still has the right of self-defense in general.

    Suppose you get into an argument a person who appears to be of lesser ability than you and you start to fight. You are confident that you can win, but suddenly he begins to get the upper hand. He gets you on the ground, and begins to bash your head against the pavement, and you realize you're about to lose consciousness. You legitimately fear that once you are unconscious, the person you are fighting intended to continue bashing your head on the ground until you are dead. If you happen to have a weapon in your pocket, which you were not planning to use, are you allowed to do so in your own defense? I would argue that you can; you don't give up the right to defend your own life, even if you are engaged in a risky and foolhardy fight. You still have the right to defend yourself. However, others may see it differently.

    Let's just turn the situation around and see if it makes sense looking at it from the point of view of the victim. Let's say you are approached by a much larger man and he begins to fight you; let's even say he throws the first punch. You defend yourself, and you begin to get the upper hand. You get him on the ground and begin to bash his head into the concrete. You're afraid that if you stop, he'll get up and do the same to you, so you keep going. You have no idea he is armed. Now, from the point of view of the victim, if you bash his head on the pavement until he dies, are you guilty of any crime? If he takes action to stop you from killing him, is he guilty of any crime? What if the victim threw the first punch instead of the shooter, does that change anything?

    But let's twist it a bit more. Suppose that you're at home and someone kicks in the door and attempts to rob you. You have a gun in your pocket, but are loathe to kill anyone. But you also do not want to be tied up and robbed, so you attack the man physically. However, he's stronger than you and soon you fear he is going to kill you. So you draw your weapon and shoot him as a last resort. Self-defense, or did you give up the right to self-defense when you choose to hit him instead of just shooting him?

    I see lots of gray area here.

    In general, and in my opinion, when a physical altercation ensues, self-defense claims become a lot more difficult to prove. However, that does not mean that a person who engages in a fight voluntarily no longer has the right of self-defense to keep themselves from being killed; it just means it is much more difficult to demonstrate that was the case.

    What makes it even murkier is that conviction of a criminal offense in the USA requires what is called 'beyond a reasonable doubt'. What that means in practice is that a judge or jury must believe that there is little to no chance, almost zero, that a person accused of a crime might actually be innocent of it. When two men offer conflicting testimony and there is no other evidence, one of them might well be lying, but there is no way to determine by legal means who is lying and who is telling the truth; the accused may well go free whether they are guilty or not. There are other factors that might be considered, such as the reputation of the men; say one is a police officer and one is a convicted felon. Or there may be eyewitness testimony or other evidence such as statements made and legally recorded by police by one of the men, or forensic evidence that would tend to prove that events could not have transpired the way one of the men claimed. But absent all of that, if it is my word against yours, there will not be a criminal conviction in general terms. And if one of the men is dead and therefore cannot testify, then there is not much the police can do to disprove the statements of the shooter.
     
  12. Bill Mattocks

    Bill Mattocks Sr. Grandmaster

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    How do you know that? I don't know if there was or if there was not, but the latest news reports state that the shooter is claiming there was a fight, and the police have agreed that the news accounts are correct that there was blood on the forehead and back of the head of the shooter, consistent with his statements that his head was being pounded into the ground by the victim. Again, I do not know; but I am curious how you can be certain.
     
  13. Twin Fist

    Twin Fist Grandmaster

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    so i guess zimmerman's nose broke on it's own? and the back of his head just...........exploded?

    come on Josh, learn to google....


     
  14. Bill Mattocks

    Bill Mattocks Sr. Grandmaster

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    That would not be a correct assumption.

    Let us take this situation as an example:

    http://www.therepublic.com/view/story/12dc3f512670476aa8248b39ee781343/FL--Self-Defense-Slaying/

    Now, the shooter obviously had a gun. The man he shot was swinging a piece of wood at his wife and children. Sounds like self-defense to me, right?

    But let us suppose for the sake of argument that the two men knew each other. Let us suppose that the man with the piece of wood had just been punched in the nose by the man with the gun, whereupon he picked up the wood and began swinging. Is it still self-defense? Should the man with the gun have permitted the man with the wood to hit his wife and children, since he had started the fight in the first place?

    I would argue it would still be self-defense.

    Most state laws on self-defense that I have read, including my own state, do not give a mitigating circumstance to self-defense if the person claiming was a) in a place they were legally permitted to be and b) legitimately in fear of their life. They just don't say anything about 'who started it'.

    Fighting is one thing; dying is another. A person generally has the right to defend their own life, even if they are engaging in voluntary fighting at the time.

    It is, however, much more difficult to successfully claim self-defense if you started the fight. That does not mean you do not have the right to defend yourself, it just means it is harder to prove it.
     
  15. Twin Fist

    Twin Fist Grandmaster

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  16. punisher73

    punisher73 Senior Master

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    Spot on post. Can't add anything, but wanted to acknowledge that it pretty much sums it up on how things work with self-defense and the law in many states.
     
  17. rframe

    rframe Green Belt

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    I think the DA would feel like a kid on Christmas morning when your case comes across his desk.
    You start a fight.
    You shoot someone.
    You "claim" self-defense.
    Yeah, my money is that the jury would hang you with about 5 minutes of deliberation.
     
  18. Bill Mattocks

    Bill Mattocks Sr. Grandmaster

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    Do you understand how the law works in the USA?

    A person accused of a crime is presumed to be innocent until proven guilty. The burden of proof is on the prosecution and not the defense; the defense is not require to prove innocence. And to be convicted a person must be considered guilty 'beyond a reasonable doubt' by the judge or jury hearing the case.

    So let's break it down. "You start a fight." First of all, is it clear that you started the fight? What if you say the other person swung first? But let's say for the sake of argument that a person starts a fight. They are certainly guilty of a crime in that case - assault and battery. But again, it's up to the prosecution to prove that you started the fight; and if you say you didn't and there are no living witnesses, how will they prove you started it?

    "You shoot someone."
    Well, that certainly sounds like a bad thing; but the law allows people to defend themselves using deadly force under several circumstances, most of which revolve around a legitimate fear of death and the legal right to be where they are. Most self-defense laws that I'm familiar with have no provision for 'unless you are fighting with someone'. It's simply not a requirement, it's irrelevant. I will grant you that it makes it much harder to establish that you were legitimately in fear of your life if you started a fight, but see the above; it's hard to prove who started it when there is only one witness.

    "You ''claim'' self-defense."
    Well, yes. And you can dismissively sneer at the the 'claim' all you want; if a person claims self-defense, it's legal to make the claim. And the prosecution has to prove that it wasn't. So how will the prosecution do that, based on the evidence available? If I understand correctly, there is one witness living; the shooter. And that person claims self-defense. There are no eye-witnesses who claim differently. There is little in the way of forensic evidence, beyond injuries suffered by the shooter which would tend to corroborate this statement that he was the one attacked (broken nose, bloody back of head).

    I fail to see how you can logically arrive at your conclusion, unless you have a serious lack of knowledge about how our legal system works.
     
  19. rframe

    rframe Green Belt

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    Clearly not, until being educated by bold font...so now all is well.

    Well, you're making assumptions in your hypothetical case that the original poster never stated. I could make just as many assumptions which would make it a breeze for a prosecutor to persuade a jury that the shooter was a dangerous person looking for a reason to shoot someone. Such is the nature of imaginary fights with non-existent people, I guess...
     
  20. Bill Mattocks

    Bill Mattocks Sr. Grandmaster

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    Happy to be of service.

    Then let's return to the original queries and not make assumptions.

    "Can I claim self defense in a court of law later?"


    Yes, anyone can claim 'self-defense' in court. There is no law prohibiting a person from so claiming.

    "Do I have a case?"

    It depends upon many things. There is little reason to believe, given the circumstances the O/P described, to think the issue would be clear-cut either way.

    However, I really was responding to you and not the O/P, so let's take that on and not make assumptions there either.

    "You start a fight."
    That's assault and battery. You could be charged and possibly convicted of it.
    "You shoot someone." That may or may not be self-defense, depending upon circumstances.
    "You "claim" self-defense." Anyone is allowed to claim self-defense. It does not mean it will be accepted by the judge or jury, but they can claim it.
    "Yeah, my money is that the jury would hang you with about 5 minutes of deliberation." If you have a logical reason for believing that, I'd love to hear it.123
     

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