The Pre-Emptive Strike, The Law and The 3rd Party View.

[MJS]

On another thread in this section, the subject of SD against a MMAist came up. The thread started to drift a bit and the discussion of the pre-emptive strike came up and how this action may be viewed by a jury or bystanders as well as the police. Rather than sidetrack that thread, I wanted to continue the discussion here.

In the other thread, JKS stated this:

"The concept of preemptive self defense has been discussed several times previously (check among these threads, for example), and I'd be happy to discuss it again. (In brief, yes, you can generally defend yourself before you get hit -- but you have to articulate why very carefully.) But, it's pretty far off topic for this thread, so if you want to do so, let's either start a new thread, or revive one of the previous ones."

Let the discussion begin!

Mike

 

[kwaichang]

Virginia Law basically has three lines of justifications that have been developed over the past three decades: lesser harmful results, forced choice and the rights theory. The "lesser harmful result" argument maintains that the killing of the aggressor is a lesser harm than the death of the defender. The "forced choice" argument says that self-defense is either justified because the defender is uniquely forced to choose between his life and the life of the aggressor, or excused because the he lacks real choice. Finally, the "rights theory" justifies self-defense by the prevailing right of the defender not to be killed over that of the aggressor.

There is also the Duty of Retreat before Killing which I am researching now as I believe Va. changed this requirement.

 

[MJS]

Posted on the other thread:


Originally Posted by allenjp
That's the exact problem I think is that most jurors will not have had to face a situation like that. It's the same problem I have when I argue the futility of gun control laws that are too restrictive. When I hypothesize about that person being attacked by someone, many times I get answers like "Well that wouldn't happen to me because I wouldn't be in a place where thaings like that happen" or "In my whole life of 40 something years I have never had a situation like that" or even worse "If I am in a situation like that I would rather them kill me than me kill them". It is precisely that kind of thinking that makes them think that even if you were the one attacked, you probably did something to deserve it in the first place. Even if just by your very presence in the place where the altercation ocurred.

And I haven't even covered the situation where the police lie to convict you, yes I have seen it happen, and just try to get a juror to believe your word over that of a police officer...

Yes, I agree, this is a problem, and it goes to show the uneducated views of people who sit on juries and make decisions. Hell, I don't frequent bad places either, but in todays world its not safe to go anywhere. Just a few weeks ago, a guy was walking to breakfast, going down the same road he always went down, in the same neighborhood he was part of and got beat up by some punks. Busted the guy up pretty bad. I'd bet anything that he never dreamed that would happen, but sadly it did. So for a juror to make a crazy comment like that, well.....I guess it shows that they're more willing to be victims and they feel that everyone should be a victim. I'm sorry, but I don't feel that anyone should be a victim.

 

[allenjp]

I should say that those comments were not made by JURORS per se, but by every day joes & janes. But juries are made up of every day joes & janes, and we should know that a lot of people that are not defense minded as we are will react in those ways when they happen to be on juries. Not everyone of course, but we need to be aware that no matter how logical or good our arguments are, in court many people will dissmiss them.

I also think it should be stressed that defense laws are mostly state by state, and also juries change in different jurisdictions. Most of what I have posted here has been based on my experiences in the courts in southern california. Perhaps, as kwaichang has done, if people have experiences in other states, or even other countries, they should post them so as to inform people better.

Oh, and sorry for hijacking the other thread...

 

[FearlessFreep]

"18-1-704. Use of physical force in defense of a person.
Statute text

(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.

This is for Colorado, emphasis mine

From http://publicola.mu.nu/archives/2007/02/03/colorado_use_of_force_laws.html

 

[cfr]

Someone once told me that striking open handed as opposed to closed looked much better/ less aggressive to juries. No idea if this is factual or not, but I thought I'd throw it out there.

 

[FearlessFreep]

Someone once told me that striking open handed as opposed to closed looked much better/ less aggressive to juries. No idea if this is factual or not, but I thought I'd throw it out there.

My understanding is that that is a myth

 

[jks9199]

A few caveats:

I'm not a lawyer. I'm not providing any sort of legal advice or guidance. Each state's laws are different, and these laws may and must shape your actions. You should spend some time learning your state laws, as well as the general principles.

With those out of the way...

First -- let's recall that any time we use force to defend ourselves, we have to justify that force. We have to be able to show that we reasonably believed (I prefer this phrasing to fear; you don't have to fear something to realize it's about to happen.) that the person would inflict bodily harm on us. This belief has to be based on facts that a person of normal intelligence and experience would find believable and credible. If we react to an actual attack, whether or not we're successfully struck, this is pretty easy. After all -- they either hit or tried to hit us!

When we move into a preemptive strike -- things get harder. A preemptive strike occurs BEFORE the suspected attack has been fully initiated; you have to be able to show that the attack was about to happen, and that your direct intervention was reasonable and appropriate to the circumstances. This isn't really different for a cop or bouncer or similar person on duty and a private person; the "pros" just run into more situations where they are likely to be justified in acting preemptively. It's impossible to generate every possible situation, but some typical elements that support acting preemptively would include a verbalized intent to attack, coupled with the ability to carry out the attack. A guy so drunk that he can't sit, let alone stand, is not likely to be considered able to carry out even the most horrific of threats. It's going to have to be pretty imminent, likely to occur in the very near future. Just because he might attack someone, I can't go out right now and beat down the Sergeant-at-Arms for the local outlaw motorcycle gang; he's actually got to be getting ready to attack me or someone else. Most importantly, the force used has to be reasonable to the threat presented.

The reasonableness of the level of force is a complicated calculus. It has to take into account factors about the victim, the assailant, and the total circumstances. Note that reasonable force does not mean "force exactly equal to that used to commit the attack." If someone pushes you, you're not necessarily limited to pushes to protect yourself, but you also are probably not justified in using lethal force. But you also aren't limited to saying "please, stop hurting me..." You can generally use sufficient force to stop the attack and prevent a further attack -- but you can't just keep thumping them after their down, and you can't chase them down as they run away from you.

It's not an easy thing to judge in the heat of the moment, and it's not easy for a jury to judge it after the fact -- if you've done the "second part" of your job well. That second part is articulating the facts and circumstances that led you to believe that you were going to be attacked. The whole issue of talking to the police or not has been discussed (see here, for one of the more recent threads); I say that making enough of a statement to allow the responding officers to assess the circumstances may just save you a visit to the jail, but I respect the arguments of those who counsel you to say nothing without an attorney. And juries are notoriously unpredictable should you face one -- but the better you can paint that picture that you believed what you did was necessary to protect yourself, and the more effectively you can put those jurors in your shoes, the more likely that you'll have a desirable outcome.

Again -- it's important that, if you train with any sort of an eye towards self defense, you invest the time to learn the basic laws regarding defending yourself.

 

[jks9199]

Someone once told me that striking open handed as opposed to closed looked much better/ less aggressive to juries. No idea if this is factual or not, but I thought I'd throw it out there.

My understanding is that that is a myth

I think it's one of those things that would depend on the circumstances. I think it's pretty damn aggressive if I walk up to a stranger and slap him in the face. But a palm to the chest of a person who's building up to a punch may look like a push, not a strike...

I don't think you can make a hard & fast rule on this, or on things like "a kick is higher force than a punch" or "shod feet are lethal weapons." There's just too much to consider; are wrestling shoes the same as steel toe boots? Is a kick to the outer thigh more force than a punch to the throat? Just too much to consider to draw a hard line...

 

[allenjp]

Jks,

Very well put on all counts...

 

[kwaichang]

Beware "open hand" looks like *karate chop* to juries. Closed handed strikes are more what the average citizen would use.

 

[punisher73]

I'm with jks9199 on this that even though I am not a lawyer, I do work in the LE field and I am a defensive tactics instructor for our dept. As jks9199 said, check your state laws, and also your city ordinances and if you can talk with an assistant prosecutor (or district attorney) on how those laws are enforced and interpreted in YOUR city/state.

One thing I thought I would throw out that I see almost EVERYONE forget about when talking about the pre-emptive strike. Most states couple the charge ASSAULT and battery. "Battery" is an unwanted touch (ie: punch, push, slap etc.) "Assualt" is the threat to do harm to an individual.

So back to our scenario.

You and a drunk at a bar,get into an argument back and forth and are calling each other names. He starts to take a swing at you and you punch him first. He gets knocked back, but no damage or injury. The fight is immediately broken up and you are both detained until the police get there. Can you claim self-defense? You can articulate that he was starting to throw a punch and you only punched him once to protect yourself and didn't do anything else. Witnesses ALL say the same thing. You and the other guy got into an argument, the other guy started to punch you and you hit him first and stopped it....

Here is the part that everyone forgets about......THE FIGHT HAD ALREADY BEGUN BEFORE THE FIRST PUNCH WAS THROWN!!! This falls into the category of the "assault" part. By arguing back and forth you are consenting to what results and can not claim self-defense in this situation, in fact, many cities have an ordinance called "disorderly by fighting" which falls into a disorderly conduct type statute and is a lot less stringent to prove (also a lot lesser offense).

Most states have what is called a "Duty to Retreat", you must make SOME kind of effort on your part to diffuse the situation and to leave or get away if it is safe to do so. Put your hands up and say "I don't want any trouble", or you keep backing up and he keeps encrouching your personal space, your back is against the wall. You do turn away and he comes at you. You need to articulate EXACTLY what you did to prevent the situation and that you fulfilled "your duty" and did everything on your part to safely leave without resorting to violence.

 

[jks9199]

I'm with jks9199 on this that even though I am not a lawyer, I do work in the LE field and I am a defensive tactics instructor for our dept. As jks9199 said, check your state laws, and also your city ordinances and if you can talk with an assistant prosecutor (or district attorney) on how those laws are enforced and interpreted in YOUR city/state.

One thing I thought I would throw out that I see almost EVERYONE forget about when talking about the pre-emptive strike. Most states couple the charge ASSAULT and battery. "Battery" is an unwanted touch (ie: punch, push, slap etc.) "Assualt" is the threat to do harm to an individual.

I debated hitting that point, and decided that it would only lead to confusion. Assault is putting a person in fear of an offensive or unwelcome touching; battery is the actual unwanted touch. As you said -- by the time the punch is moving, the assault has happened.

Most states have what is called a "Duty to Retreat", you must make SOME kind of effort on your part to diffuse the situation and to leave or get away if it is safe to do so. Put your hands up and say "I don't want any trouble", or you keep backing up and he keeps encrouching your personal space, your back is against the wall. You do turn away and he comes at you. You need to articulate EXACTLY what you did to prevent the situation and that you fulfilled "your duty" and did everything on your part to safely leave without resorting to violence.

Duty to retreat laws are complicated, and vary. Without spending an hour or two looking up state codes, I'm not comfortable with saying "most" -- but I know there are quite a few. The exact wording is important, and what constitutes adequate "retreat" is even more complicated. Some states would require you to run as far as you can, and have no other alternative but getting hit/hurt before you defend yourself; others just require some sort of retreat, and still others have no requirement. That's why you need to learn YOUR state laws.

But it's never going to hurt you, should the case go before either a civil or criminal jury, to be able to explain everything you did to avoid a physical confrontation!

 

[punisher73]

Duty to retreat laws are complicated, and vary. Without spending an hour or two looking up state codes, I'm not comfortable with saying "most" -- but I know there are quite a few. The exact wording is important, and what constitutes adequate "retreat" is even more complicated. Some states would require you to run as far as you can, and have no other alternative but getting hit/hurt before you defend yourself; others just require some sort of retreat, and still others have no requirement. That's why you need to learn YOUR state laws.

But it's never going to hurt you, should the case go before either a civil or criminal jury, to be able to explain everything you did to avoid a physical confrontation!

I agree, that is why I had my disclaimer upon your disclaimer. LOL

It is a point that alot of people don't think about. So I thought I would touch on it. I know our AP that I have talked to thinks that if two people are standing there arguing back and forth and then someone throws a punch and you "defend" yourself, it is still mutual combat. You were "assaulting" the other person as well when you were yelling back and forth and compounding the problem (that is why our Pros, usually goes with the disorderly by fighting).

 

[Kacey]

We discuss this and other self-defense scenarios in class on a periodic basis - most recently just last week. The concept of "imminent harm" came up, especially from one of my students who is a judge. His take was that as long as you can justify that you felt you were in imminent danger, you could react - here's the scenario we were discussing:

One of my students (female) was at a party with friends when another party-goer stuck his hand under her skirt and patted her behind, and then removed his hand. She spun around, hands out, and grabbed him by the genitals. She wanted to know if her reaction was legally acceptable (she's from South America). The consensus was that if he had kept his hand on her behind, she'd have been okay, or if he had grabbed her genitalia or bosom, but once he removed his hand, she was not legally clear - especially as her choice of target was an increase in the level of concern.

 

[KenpoTex]

I think it's counterproductive to the discussion to get hung up on terms like "assault" vs. "battery," etc. As has been said before, check the laws in your area because terms and definitions vary. For example, in Missouri, there is no distinction between assault and battery, there is just assault. This includes everything from "common" or "3rd degree" assault which can be pushing someone or even saying something that puts them in fear, all the way up to 1st degree assault which is basically attempted murder.

I think the big thing to remember is that in order for your act of defense to be legally justified, you must be able to articulate that the attacker possessed the Ability, Opportunity, and Intent to cause you (or a third party) injury or death. If that requirement is satisfied, then you will be justified in using force to protect yourself regardless of whether the force is used preemptively or not (I'm not getting into "duty to retreat" since this varies so widely from place to place).

 

[bowser666]

I am not sure if I am correct here but in regards to a pre-emptive strike , etc.... I thought the only way striking an assailant is either in immediate defense ( if they are attacking you ) or if they have you cornered and there is no avenue of retreat ? Otherwise you risk getting in trouble with the law. Even if the person has verbally threatened you, you still do not have a right to strike. Not to mention a good lawyer could sue your pants off , if the other decides to seek representation. Think before you act or react for that matter.

 

[kwaichang]

All of the aforementioned is why the first "rule" given in my self defense classes is/was: avoid.

P.S. a hand up a skirt is sexual abuse; she could have slapped him without risking a battery charge....actually called assault in most states.

 

[FearlessFreep]

I am not sure if I am correct here but in regards to a pre-emptive strike , etc.... I thought the only way striking an assailant is either in immediate defense ( if they are attacking you ) or if they have you cornered and there is no avenue of retreat ? Otherwise you risk getting in trouble with the law. Even if the person has verbally threatened you, you still do not have a right to strike. Not to mention a good lawyer could sue your pants off , if the other decides to seek representation. Think before you act or react for that matter.

*That* varies from place to place

 

[Kacey]

All of the aforementioned is why the first "rule" given in my self defense classes is/was: avoid.

P.S. a hand up a skirt is sexual abuse; she could have slapped him without risking a battery charge....actually called assault in most states.

That's what we told her; due to cultural differences, it took us some time to convince her of the difference between slapping him and grabbing his gonads.