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

[7starmarc]

One thing to think about. I have heard the idea that since the person claiming self defense "didn't have a mark on him" that the claim of self defense was not as strong or outright false. The most recent time I heard this was from a relative of mine who happens to be a prosecutor discussing a recent case.

This can really cast your pre-emptive actions in a bad light.

Furthermore, we train to defend ourselves. Even if we are not acting in a pre-emptive manner, if you successfully block/dodge an initial strike, you can still look like the bad guy. Of course, some will argue that if you have the skill to avoid bodily harm, then perhaps you don't acutally need to hurt the other person to remain safe. Assinine, I know, but I could conceive of that argument being made at some level, and some juror buying it.

"Mr. Rex Jones has a black belt in Rex Kwan Do, so he was never really in danger of actually being hurt. So I ask you, members of the jury, was it really necessary for him to hurt poor Mr. Scumbag? I think not."

I guess in any of the actions, you really need to be able to articulate clearly and convicingly your rationale for action and genuine concern for your own safety or the safety of others.

 

[allenjp]

These are exactly the kinds of things I have been referring to. It sounds idiotic, but people actually buy into this crap, and people are what juries are made of.

 

[MJS]

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.

I suppose what we need to hope for is that a good portion of the 12 has some resonable common sense.

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

No worries. I think that discussions such as this are important, especially for those whos priority is self defense.

 

[FearlessFreep]

These are exactly the kinds of things I have been referring to. It sounds idiotic, but people actually buy into this crap, and people are what juries are made of.

Well one thing running through my mind is this whole conversation has been that laws will vary and judges will vary and juries will vary but the one thing you can do is have a mindset of...

Well I first phrased it a long time ago as "Only act when the cost of not acting is greater than the cost of acting" which may not be wholly clear or accurate, but it does provide a nice quip to remind me not to do anything I don't have to.

Which is why I think training for confidence is important. The more confident, the more relaxed, the more relaxed, the less likely to do something out of stress, the less likely to overreact or react prematurely

I think in general, the more confidently you can say "I only did what I really had to, and no more", the better off you will be

 

[MJS]

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.

If I had to take a guess, I'd say yes, it would look better in their eyes. Kind of along the lines of having your hands up in a defensive posture, rather than closed fists. You're still able to defend and execute strikes, but to the bystander, it doesnt look as bad.

 

[MJS]

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!

In this case I'd think that each case is going to be different. Defender A may feel that an attack will not happen, while Defender B may feel that it will 10 secs. after the altercation starts. Obviously in that case, that would probably fall into the pre-empt category. If the attack is actually launched, well, that should be obvious.

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.

Yes, I can see how that can be the hard part..showing that it was about to happen. Then again, IMO, any aggressive action I feel would justify a pre-empt. Perhaps everyones idea of a pre-empt is different. I'm thinking things along the lines of...from hands up in a defensive posture, a quick palm to the face, a kick to the shin, or something along the lines of the SPEAR ala Tony Blauer. IMO, none of the mentioned things seem too over the top, compared to a punch, elbowing the guys head, etc. Then again, depending on the situation, our action may need to be raised.

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.

Can't disagree with any of this.

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.

Hmmm..the old saying, "Think before you speak" comes to mind here. Saying the wrong thing could jam you up.

 

[7starmarc]

Forgive me for not quoting, but I'm a bit lazy right now.

The "reasonable" argument is not what we reasonably believe. What we reasonably believed is a minor part of the equation. What the defense lawyer must be able to demonstrate is that a "reasonable person" would "reasonably believe" that such a course of action was necessary.

We actually run into more problems by virtue of our training because we may be portrayed as no longer being the "everyman" or the "reasonable person". Violence, or the practice/preparation for violence is much more a part of our lives than the average person on the street. Is that "reasonable"? I believe so. I believe that it is the sane and intelligent thing that a reasonable person should do. Is it seen as "reasonable" by 12 strangers who may be very foreign to the concepts and practices we are relatively comfortable? I can only hope so if I am in the situation that I find myself having to provide reason and defense for actions which have caused physical harm to another person.

 

[MJS]

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).

Great points. This unfortunately is where we get into the sticky area for the reasons you listed. The odds of someone saying that we were the aggressor out weigh the ones that would say it was the other guy. But, if we attempt to defuse, say something like, "Hey man, I don't want any trouble with you." we will probably look better in the eyes of the bystanders.

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.

Absolutely!!!

 

[jks9199]

One thing to think about. I have heard the idea that since the person claiming self defense "didn't have a mark on him" that the claim of self defense was not as strong or outright false. The most recent time I heard this was from a relative of mine who happens to be a prosecutor discussing a recent case.

This can really cast your pre-emptive actions in a bad light.

It can; that's why I stressed the need to be able to explain why you felt you had to act, and to be able to put the judge and jury in your shoes. I've seen police officer reports to justify putting a pretty serious hurt on someone that amounted to "The suspect became uncooperative, so we took him to the ground." Not to good... Compare that with "The suspect refused to obey my commands to place his hands behind his back. He raised his fists in a fighter's stance, and began to advance on me, at which time I stepped in, grabbed his left arm and used an arm bar throw to take him to the ground." If you're going to act preemptively, you have to be able to describe what led you to feel that you were about to hurt in a way that a drunken 5th grader would believe you were right.

Furthermore, we train to defend ourselves. Even if we are not acting in a pre-emptive manner, if you successfully block/dodge an initial strike, you can still look like the bad guy. Of course, some will argue that if you have the skill to avoid bodily harm, then perhaps you don't acutally need to hurt the other person to remain safe. Assinine, I know, but I could conceive of that argument being made at some level, and some juror buying it.

"Mr. Rex Jones has a black belt in Rex Kwan Do, so he was never really in danger of actually being hurt. So I ask you, members of the jury, was it really necessary for him to hurt poor Mr. Scumbag? I think not."

I guess in any of the actions, you really need to be able to articulate clearly and convicingly your rationale for action and genuine concern for your own safety or the safety of others.

Again, it's going to come down to articulation. "When he punched me, I used a forearm block to keep him from hitting me, and immediately countered with a punch to his face to keep him from trying to hit me again." It's also going to be important to be able to show that you refrained from turning a defense into an assault; that there was no significant break between his attack and your defensive actions. Just 'cause someone's punched you (or worse), you can't go chasing after them and keep attacking them as they try to get away.

These are exactly the kinds of things I have been referring to. It sounds idiotic, but people actually buy into this crap, and people are what juries are made of.

Yep... That's why articulation, being able to tell that story so that a listener can put themselves in your shoes and understand why you acted is so vital.

 

[MJS]

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.

Someone verbally assaulting you vs. making aggressive moves towards you, drawing back to hit you...that is where the pre-empt comes in. The focus of this discussion is who the pre empt is going to look in the eyes of the police, bystanders, as well as the courts.

Mike

 

[jks9199]

Forgive me for not quoting, but I'm a bit lazy right now.

The "reasonable" argument is not what we reasonably believe. What we reasonably believed is a minor part of the equation. What the defense lawyer must be able to demonstrate is that a "reasonable person" would "reasonably believe" that such a course of action was necessary.

We actually run into more problems by virtue of our training because we may be portrayed as no longer being the "everyman" or the "reasonable person". Violence, or the practice/preparation for violence is much more a part of our lives than the average person on the street. Is that "reasonable"? I believe so. I believe that it is the sane and intelligent thing that a reasonable person should do. Is it seen as "reasonable" by 12 strangers who may be very foreign to the concepts and practices we are relatively comfortable? I can only hope so if I am in the situation that I find myself having to provide reason and defense for actions which have caused physical harm to another person.

Strictly speaking, you're not held to some higher standard just because you're a martial artist or a cop. On paper, your actions are still assessed by what a reasonable person would believe, in that situation. (Graham v Connor, 490 U.S. 386 (1989) set the standard for that police use of force is judged by objective reasonableness, not a due process analysis.)

Of course -- in reality, a jury may do just about anything... Tjhat's why, should you ever find yourself on the wrong side of a courtroom, be it civil or criminal, you want to go into hock to get the best attorney to represent you. Not the best you can afford -- the best.

 

[7starmarc]

Strictly speaking, you're not held to some higher standard just because you're a martial artist or a cop. On paper, your actions are still assessed by what a reasonable person would believe, in that situation. (Graham v Connor, 490 U.S. 386 (1989) set the standard for that police use of force is judged by objective reasonableness, not a due process analysis.)

Of course -- in reality, a jury may do just about anything... Tjhat's why, should you ever find yourself on the wrong side of a courtroom, be it civil or criminal, you want to go into hock to get the best attorney to represent you. Not the best you can afford -- the best.

Yes, I was not referring to a legal standard, but of the application of that same standard to different people, under different stereotypes.

 

[FearlessFreep]

The "reasonable" argument is not what we reasonably believe. What we reasonably believed is a minor part of the equation. What the defense lawyer must be able to demonstrate is that a "reasonable person" would "reasonably believe" that such a course of action was necessary.

We actually run into more problems by virtue of our training because we may be portrayed as no longer being the "everyman" or the "reasonable person". Violence, or the practice/preparation for violence is much more a part of our lives than the average person on the street. Is that "reasonable"? I believe so

Which is why I was talking about confidence above. Your training should give you confidence in yourself. Your confidence in yourself and your confidence in your training and technique means you should have a much higher threshold of response. Since you are more able to defend yourself, you are less likely to feel threatened and therefore less likely to respond.

 

[sgtmac_46]

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.

It looks better to witnesses, which in turn SOUNDS better to juries.

 

[sgtmac_46]

Strictly speaking, you're not held to some higher standard just because you're a martial artist or a cop. On paper, your actions are still assessed by what a reasonable person would believe, in that situation. (Graham v Connor, 490 U.S. 386 (1989) set the standard for that police use of force is judged by objective reasonableness, not a due process analysis.)

Of course -- in reality, a jury may do just about anything... Tjhat's why, should you ever find yourself on the wrong side of a courtroom, be it civil or criminal, you want to go into hock to get the best attorney to represent you. Not the best you can afford -- the best.

Hold on.....you're correct as it pertains to Martial Artists......make no mistake about it, you WILL be held to a different standard as a police officer, specifically because you operate with the power of the state. Ergo, unlike a private citizen, who is not SUBJECT to the requirement that they act in accordance with the Constitutional Rights of others, police officers can be charged with 'Violation of Rights' under federal law, both criminally and civily.

 

[kwaichang]

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

Unfortunately, there is NO Castle Doctrine in Virginia. It was defeated in the Senate in 2007. However, the following may be of interest.
Brandishing a Deadly Weapon In Defense of Personal Property is A Criminal Act
Virginia case law, found here has several excellent examples of situations and their legality.
http://www.virginia1774.org/Page5.html


The threat to use deadly force by brandishing a deadly weapon has long been considered an assault. Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955). In Merritt v. Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 398 (1935),

 

[allenjp]

Unfortunately, there is NO Castle Doctrine in Virginia. It was defeated in the Senate in 2007. However, the following may be of interest.
Brandishing a Deadly Weapon In Defense of Personal Property is A Criminal Act
Virginia case law, found here has several excellent examples of situations and their legality.
http://www.virginia1774.org/Page5.html


The threat to use deadly force by brandishing a deadly weapon has long been considered an assault. Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249,
255 (1955). In Merritt v. Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 398 (1935),

Same in CA. you cannot use force or the threat of deadly force to defend against a property crime. Only against a threat to a person. That dynamic changes completely however once they force their way into your house...

 

[jks9199]

Same in CA. you cannot use force or the threat of deadly force to defend against a property crime. Only against a threat to a person. That dynamic changes completely however once they force their way into your house...

With very few exceptions, you cannot use lethal force to defend property; even a dirtbag's life outweighs most mere "stuff." The premise in the Castle Doctrine isn't that you're defending your home -- it's a presumption that a person who breaks into your house intends to do you harm, and you're entitled to protect yourself from that harm. Even in Texas (the most liberal codification I'm aware of is Texas law), I still wouldn't suggest simply blasting someone breaking into your house or trying to take your stuff. You might win the criminal trial -- but you'll probably have an uphill battle in the wrongful death case.

 

[kwaichang]

That's when you put a knife in the burglars hand, after you've coveyed him to the next world.

 

[punisher73]

Hold on.....you're correct as it pertains to Martial Artists......make no mistake about it, you WILL be held to a different standard as a police officer, specifically because you operate with the power of the state. Ergo, unlike a private citizen, who is not SUBJECT to the requirement that they act in accordance with the Constitutional Rights of others, police officers can be charged with 'Violation of Rights' under federal law, both criminally and civily.

Two court cases I know of. One was a deputy who worked in corrections (who was off duty at the time) and used to get into fights with his wife. I knew someone who knew both parties and it was fighting it wasn't an abuse situation, it was a two way street. His wife had diagnosed psych issues and would fly off the handle and start hitting him. One day when they are fighting, she calls the police, one thing leads to another and he is arrested and jailed. The court set a HUGE bond amount because part of their logic was being a trained officer he was trained in hand to hand and could seriously hurt someone more than the average citizen.

The other case was a regular citizen who punched his girlfriend and cracked her orbital socket. He was charged quite high with a huge bond and part of the court's reasoning was that the guy took kickboxing and he was a "trained fighter" who would hurt someone more seriously than the average person.

Is there something on the books that says if you're a LEO or MA that your hands are "deadly weapons", no but in my experience where I live it does play a big part on how you're charged and your bond while awaiting trial.

PS: We found out about the fighting AFTER this incident happened. Most people in the dept. did not know this was happening. Long story, but someone knew the guy's wife and she would always talk about them fighting and that she would just start hitting him.