Self defense laws...

[CNida]

Question for anyone who cares to read this and is willing to elaborate a bit:

What are the "self defense laws" where you currently live? I use the term self defense laws loosely because I am not certain that there are such laws in some places.

For instance, during my tour in South Korea, I was told that there is no immediate right granted to you for self defense simply because you are attacked. Fleeing has the be your first consideration, always. If there is no way you can get away and call for help, and you are absolutely, positively backed into a corner with nowhere to run, then and only then can you take measures to physically defend yourself.

I'm a little foggy about the US laws. I think, here in Arkansas where I am staying, it's not so restricting. There is obviously such a thing as going too far, but I believe that generally it's expected that if you are attacked that you will do what it is necessary to defend yourself: be it running away or standing your ground.

I know some states differ, and obviously other countries will be vastly different than ours here in the states, I am sure.


____________________________

"A man who has attained mastery of an art reveals it in his every action." - Anonymous

 

[Brian R. VanCise]

Here is a link to a blog post regarding Nevada self-defense laws. Note that this is a video put out by a Legal Team trying to get business:

http://brianvancise.com/2013/12/20/nevada-self-defense-laws-explained-by-a-lawyer/

This is their website where they break it down a bit more: http://www.shouselaw.com/nevada/self-defense.html

I think it is very important in your self defense training to get legal advise. Personally I try to get it from several sources!

Self Defense laws do very from state to state here in the United States. I think it is very important that you get good advise on what you legally can do in your state!

 

[Tgace]

http://www.martialtalk.com/forum/showthread.php?t=17071

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[Brian R. VanCise]

Here is another blog post regarding Michigan law:

http://brianvancise.com/2008/01/30/personal-protection-101-know-the-laws-in-your-state-country-etc/

 

[Tgace]

Here's some stuff I've written on NY law:

http://tgace.com/category/law-enforcement-2/article-35/

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[jks9199]

Question for anyone who cares to read this and is willing to elaborate a bit:

What are the "self defense laws" where you currently live? I use the term self defense laws loosely because I am not certain that there are such laws in some places.

For instance, during my tour in South Korea, I was told that there is no immediate right granted to you for self defense simply because you are attacked. Fleeing has the be your first consideration, always. If there is no way you can get away and call for help, and you are absolutely, positively backed into a corner with nowhere to run, then and only then can you take measures to physically defend yourself.

I'm a little foggy about the US laws. I think, here in Arkansas where I am staying, it's not so restricting. There is obviously such a thing as going too far, but I believe that generally it's expected that if you are attacked that you will do what it is necessary to defend yourself: be it running away or standing your ground.

I know some states differ, and obviously other countries will be vastly different than ours here in the states, I am sure.


____________________________

"A man who has attained mastery of an art reveals it in his every action." - Anonymous

Every state is different, and you really need to consult someone knowledgeable about your state laws. There are some general principles across the US that are fairly consistent -- which is not to say that there aren't wrinkles that are unique. Generally, you may use the force reasonably necessary to safely resolve a situation, and no more. However, there are issues like so-called Stand Your Ground laws which may effect your duty to retreat and the Castle Doctrine that come into play, as well.

 

[Tgace]

What's very interesting and important to know is that some States have self defence laws that are "affirmative defences"....which means YOU have to prove defence by a preponderance of the evidence while others have it as a "defence"...which means the State has to disprove self defence beyond a reasonable doubt.

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[jks9199]

What's very interesting and important to know is that some States have self defence laws that are "affirmative defences"....which means YOU have to prove defence by a preponderance of the evidence while others have it as a "defence"...which means the State has to disprove self defence beyond a reasonable doubt.

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I'm curious... which states don't treat self defense as an affirmative defense? It's my understanding that the general principle is that self defense is an affirmative defense, requiring the accused to admit they did in fact commit the offense, but they were justified in doing so because they were (in the case of self defense) in fear of assault, bodily harm, or death. As I understand it, even the states that have codified self defense or things like the Stand Your Ground laws don't change that proposition; they simply spell out specific circumstances that apply.

 

[K-man]

Basically in Australia if there is any doubt you will end up in court to justify your actions. If there is CCTV, or witnesses showing you were attacked and had no option but to retaliate, then you will probably be ok as long as you didn't use excessive force. So rule of thumb, try to keep out of trouble in the first place.
:asian:

 

[Tgace]

I'm curious... which states don't treat self defense as an affirmative defense? It's my understanding that the general principle is that self defense is an affirmative defense, requiring the accused to admit they did in fact commit the offense, but they were justified in doing so because they were (in the case of self defense) in fear of assault, bodily harm, or death. As I understand it, even the states that have codified self defense or things like the Stand Your Ground laws don't change that proposition; they simply spell out specific circumstances that apply.

In NY The Defense of Justification is a "defense".

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[Tgace]

I'm curious... which states don't treat self defense as an affirmative defense? It's my understanding that the general principle is that self defense is an affirmative defense, requiring the accused to admit they did in fact commit the offense, but they were justified in doing so because they were (in the case of self defense) in fear of assault, bodily harm, or death. As I understand it, even the states that have codified self defense or things like the Stand Your Ground laws don't change that proposition; they simply spell out specific circumstances that apply.

To clairfy:

http://www.usacarry.com/new-york-castle-doctrine-stand-your-ground-laws-facts-and-myths/

Most states consider the use of deadly force in self-defense an Affirmative Defense – not so with New York:

“THE RIGHT TO DEFEND ONESELF OR ANOTHER WAS EARLY CODIFIED IN THIS STATE AS AN INTEGRAL PART OF THE MURDER STATUTES, AND THIS COURT HAS LONG HELD THE PEOPLE HAVE THE BURDEN OF DISPROVING BEYOND A REASONABLE DOUBT A DEFENDANT’S CLAIM THAT HE WAS ACTING IN THE EXERCISE OF THAT RIGHT. ACCORDINGLY, JUSTIFICATION UNDER THE PENAL LAW IS AN ORDINARY DEFENSE RATHER THAN AN AFFIRMATIVE ONE. AS SUCH, WHENEVER JUSTIFICATION IS SUFFICIENTLY INTERPOSED BY THE DEFENDANT, THE PEOPLE MUST PROVE ITS ABSENCE TO THE SAME DEGREE AS ANY ELEMENT OF THE CRIME CHARGED.” PEOPLE V. MCMANUS, 67 N.Y. 2D 541 (1986)

New York State Penal Law, Article 25 defines:

1) When a “defense,” other than an “affirmative defense,” defined by statute is raised at a trial, the people have the burden of disproving such defense beyond a reasonable doubt.

2) When a defense declared by statute to be an “affirmative defense” is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.

And as spelled out in our penal law:

In any prosecution for an offense, justification, as defined in sections 35.05 through 35.30, is a defense.

Whereas in our "insanity defense":

40.15 Mental disease or defect. In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect.

...

This is why NY does not need or have a "Castle Doctrine" statute.....

So yes, a person has indeed admitted "I did it and I was justified", but he/she doesn't have to "prove it"....the State has to disprove it.

A shameless plug for some of my work further explaining NY Art 35:

http://tgace.com/category/law-enforcement-2/article-35/



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[Tgace]

As an interesting discussion regarding "citizens arrest", this is how MY state covers the use of force in that situation.

http://tgace.com/2013/12/28/stop-in-the-name-of-the-law/

4. A private person acting on his or her own account may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense and who in fact has committed such offense; and may use deadly physical force for such purpose when he or she reasonably believes such to be necessary to:

This covers “citizen arrests”.

The section above is almost exactly like that for the Cop in NY Penal Law except for one very important part, the part that states AND WHO IN FACT COMMITTED SUCH OFFENSE.
Police can arrest on probable cause. That’s probably the most important power given them by law. You do not have that power. You have to “reasonably believe” that the person you are arresting did indeed break the law AND that person IN FACT COMMITTED THE CRIME.

If afterwords its discovered that the person didn't commit the crime the Cop is covered as long as he had probable cause at the time. If you are assisting an officer at his command you are covered. If you use physical force in a citizens arrest and you were wrong……well….you see what this means right?

AKA "the you better be right law".

 

[Rumy73]

What's very interesting and important to know is that some States have self defence laws that are "affirmative defences"....which means YOU have to prove defence by a preponderance of the evidence while others have it as a "defence"...which means the State has to disprove self defence beyond a reasonable doubt.

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Self defense by its legal nature is always an affirmative legal defense. The reasons for using force and the extent of the force used must be proven to be reasonable by the person should he be prosecuted by the state or sued in civil court.

 

[Rumy73]

As an interesting discussion regarding "citizens arrest", this is how MY state covers the use of force in that situation.

http://tgace.com/2013/12/28/stop-in-the-name-of-the-law/



AKA "the you better be right law".

Be careful, if you mistakenly detain a person, you could be sued for false arrest or even prosecuted for kidnapping.

 

[Tgace]

Self defense by its legal nature is always an affirmative legal defense. The reasons for using force and the extent of the force used must be proven to be reasonable by the person should he be prosecuted by the state or sued in civil court.

Not in every State it's not. Read my post above regarding NY law.

http://www.leagle.com/decision/198660867NY2d541_1553

This right to defend oneself or another was early codified in this State as an integral part of the murder statutes (see, e.g., L 1787, ch 22; 2 Rev Stat of NY, part IV, ch I, tit II, § 3 [1829]), and this court has long held the People have the burden of disproving beyond a reasonable doubt a defendant's claim that he was acting in the exercise of that right (see, e.g., People v Taylor, 177 N.Y. 237, 245, supra; People v Riordan, 117 N.Y. 71, 74-75). Accordingly, justification under the Penal Law is an ordinary defense rather than an affirmative one (see, Penal Law § 35.00). As such, whenever justification is sufficiently

interposed by the defendant, the PEOPLE MUST PROVE its absence to the same degree as any element of the crime charged (People v Reed, 40 N.Y.2d 204, 209; People v Steele, 26 N.Y.2d 526, 528).

 

[Rumy73]

Not in every State it's not. Read my post above regarding NY law.

http://www.leagle.com/decision/198660867NY2d541_1553

Ok. However, a person still must make a defense. He is not shielded from civil liability either. See the case of Bernard Getz.

 

[Tgace]

Ok. However, a person still must make a defense. He is not shielded from civil liability either. See the case of Bernard Getz.

Civil liability is an entirely different subject.

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[Rumy73]

Civil liability is an entirely different subject.

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Yes, it is. However, it cannot be ignored.

 

[Tgace]

Ill start with staying alive as the first priority.....getting sued as a second.

 

[Tgace]

It appears that Hawaii has Justification classified as a "defense" (vs. Affirmative Defense) as well:

http://statutes.laws.com/hawaii/volume-14/title-37/chapter-703/hrs-0703-0301-htm

Of course the defendant in any self-defense case will have to provide some sort of evidence that his/her use of force was in self-defense, BUT once that's provided the State then has to disprove the defense beyond a reasonable doubt.

In "affirmative defense" cases its on the defendant to prove self-defense by a preponderance of the evidence. This is a major difference in how your court experience will go if you ever have to use force in self-defense.

http://codes.lp.findlaw.com/histatutes/5/37/701/701-115

The Code establishes two classes of defenses. As to both, it places an initial burden on the defendant to come forward with some credible evidence of facts constituting the defense, unless, of course, those facts are supplied by the prosecution's witnesses.

As to the burden of persuasion, two different rules are codified. In the case of defenses which are not affirmative, the defendant need only raise a reasonable doubt as to the defendant's guilt. The other side of the coin is that the prosecution must prove beyond a reasonable doubt facts negativing the defense. The prosecution in fact does this when the jury believes its case and disbelieves the defense.

In the case of affirmative defenses, the burden on the defendant increases. Now the defendant must prove by a preponderance of the evidence facts which negative the defendant's penal liability. Subsection (4) defines "affirmative defense," making it clear that this type of defense needs special legislative prescription. Unless the Legislature has made a particular defense affirmative, the defendant's burden is only to raise a reasonable doubt.
- See more at: http://codes.lp.findlaw.com/histatutes/5/37/701/701-115#sthash.3HCOyHC5.dpuf