Use of Force Law

hglkpr

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I was just looking into this for myself, so figured I'd share. From an MCLE book, updated October, 2010, dealing with CRIMINAL law only. (Note: I am a lawyer, but the below is for informational/educational purposes only - YMMV):
[h=2]SELF-DEFENSE[/h]A person may use reasonable force when necessary to defend himself or herself from physical harm at the hands of another. Such use of force in self-defense is fully justified and provides a complete defense to criminal charges arising out of the use of such force.


Strictly speaking, self-defense is not a defense at all. When the issue is properly raised, either through the Commonwealth’s case or through witnesses called by the defense, the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. See Commonwealth v. A Juvenile , 396 Mass. 108, 113-14 (1985). If, at the conclusion of the evidence, the finder of fact has a reasonable doubt as to whether the defendant acted in self-defense, the defendant must be found not guilty.


To prove beyond a reasonable doubt that the defendant did not act in self-defense, the Commonwealth must show that one of the following elements of self-defense is absent from the case:


  • The defendant must have reasonably believed that he or she was being attacked or was immediately about to be attacked and that his or her personal safety was in immediate danger.


    Factors that may be considered in determining whether a defendant’s apprehension of immediate harm was reasonable include

  • relative size and strength of the persons involved,

  • whether weapons were involved,

  • the location of the incident,

  • whether threats were made, and

  • any other relevant factors arising from the circumstances of the event.

  • The defendant must have done everything reasonably possible in the circumstances to avoid physical confrontation before resorting to force, including retreating or escaping. However, this does not mean that a person must expose himself or herself to additional danger in order to retreat.


    Factors relevant to this issue are

  • whether avenues of retreat or escape were available to him or her,

  • how imminent the threat of harm was, and

  • whether summoning aid would have helped.

  • The law recognizes that a person who is attacked may have to decide how to respond quickly and under emotional strain. As Justice Holmes noted inBrown v. United States , 256 U.S. 335, 343 (1921), "[d]etached reflection cannot be demanded in the presence of an uplifted knife."


    The requirement of retreat does not apply to one who is attacked in his or her own dwelling if the occupant reasonably believes that the intruder is about to kill or seriously injure the occupant. G.L. c. 278, § 8A. This rule only applies if the "victim" is in the home unlawfully. So if the "victim" was invited into the defendant’s home and only later began to attack the defendant, then the rule absolving the defendant from the necessity of attempting retreat would not apply. Commonwealth v. Painten , 429 Mass. 536, 545-46 (1999). The amount of force that can be used is that force which is necessary to protect the occupants. G.L. c. 278, § 8A.

  • The defendant must have used no more force than reasonably necessary in the circumstances to defend himself or herself.


    Factors relevant to the consideration of this issue include

  • relative size and strength of the combatants,

  • use of weapons,

  • location of the incident,

  • perception of the danger by the defendant, and

  • availability of maneuvering room.

See Commonwealth v. Stokes, 374 Mass. 583, 594 n.7 (1978) (quoting Commonwealth v. Kendrick, 351 Mass. 203, 212 (1966)).


[h=2]Use of Deadly Force[/h]The use of deadly force in self-defense has additional requirements. Deadly force, which is "force intended or likely to cause death or great bodily harm," Commonwealth v. Klein, 372 Mass. 823, 827 (1977), may be used to repel an attack only under the following circumstances:


  • where a person reasonably believes himself or herself to be in imminent danger of death or serious bodily harm;

  • where the person uses all other proper means to avoid physical confrontation before resorting to deadly force (note: the provisions of G.L. c. 278, § 8A explained above apply to the use of deadly force in one’s home or dwelling); and

  • where the force used was no more than reasonably necessary under all circumstances.

See Commonwealth v. Barber, 394 Mass. 1013, 1013 (1985) (quoting Commonwealth v. Harrington, 379 Mass. 446, 450 (1980)); see also Commonwealth v. Espada , 450 Mass. 687, 692-94 (2008); cf . Commonwealth v. Cabral , 443 Mass. 171, 182-85 (2005).


The burden remains squarely on the Commonwealth to prove beyond a reasonable doubt that the defendant was not entitled to use deadly force or that the force was excessive. In murder cases, excessive use of deadly force in self-defense is manslaughter.Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006); see also Commonwealth v. Glover, 76 Mass. App. Ct. 799, 804-09 (2010).

 

Indie12

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I was just looking into this for myself, so figured I'd share. From an MCLE book, updated October, 2010, dealing with CRIMINAL law only. (Note: I am a lawyer, but the below is for informational/educational purposes only - YMMV):
[h=2]SELF-DEFENSE[/h]A person may use reasonable force when necessary to defend himself or herself from physical harm at the hands of another. Such use of force in self-defense is fully justified and provides a complete defense to criminal charges arising out of the use of such force.


Strictly speaking, self-defense is not a defense at all. When the issue is properly raised, either through the Commonwealth’s case or through witnesses called by the defense, the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. See Commonwealth v. A Juvenile , 396 Mass. 108, 113-14 (1985). If, at the conclusion of the evidence, the finder of fact has a reasonable doubt as to whether the defendant acted in self-defense, the defendant must be found not guilty.


To prove beyond a reasonable doubt that the defendant did not act in self-defense, the Commonwealth must show that one of the following elements of self-defense is absent from the case:


  • The defendant must have reasonably believed that he or she was being attacked or was immediately about to be attacked and that his or her personal safety was in immediate danger.


    Factors that may be considered in determining whether a defendant’s apprehension of immediate harm was reasonable include

  • relative size and strength of the persons involved,

  • whether weapons were involved,

  • the location of the incident,

  • whether threats were made, and

  • any other relevant factors arising from the circumstances of the event.

  • The defendant must have done everything reasonably possible in the circumstances to avoid physical confrontation before resorting to force, including retreating or escaping. However, this does not mean that a person must expose himself or herself to additional danger in order to retreat.


    Factors relevant to this issue are

  • whether avenues of retreat or escape were available to him or her,

  • how imminent the threat of harm was, and

  • whether summoning aid would have helped.

  • The defendant must have used no more force than reasonably necessary in the circumstances to defend himself or herself.


    Factors relevant to the consideration of this issue include

  • relative size and strength of the combatants,

  • use of weapons,

  • location of the incident,

  • perception of the danger by the defendant, and

  • availability of maneuvering room.

See Commonwealth v. Stokes, 374 Mass. 583, 594 n.7 (1978) (quoting Commonwealth v. Kendrick, 351 Mass. 203, 212 (1966)).


[h=2]Use of Deadly Force[/h]The use of deadly force in self-defense has additional requirements. Deadly force, which is "force intended or likely to cause death or great bodily harm," Commonwealth v. Klein, 372 Mass. 823, 827 (1977), may be used to repel an attack only under the following circumstances:


  • where a person reasonably believes himself or herself to be in imminent danger of death or serious bodily harm;

  • where the person uses all other proper means to avoid physical confrontation before resorting to deadly force (note: the provisions of G.L. c. 278, § 8A explained above apply to the use of deadly force in one’s home or dwelling); and

  • where the force used was no more than reasonably necessary under all circumstances.

See Commonwealth v. Barber, 394 Mass. 1013, 1013 (1985) (quoting Commonwealth v. Harrington, 379 Mass. 446, 450 (1980)); see also Commonwealth v. Espada , 450 Mass. 687, 692-94 (2008); cf . Commonwealth v. Cabral , 443 Mass. 171, 182-85 (2005).


The burden remains squarely on the Commonwealth to prove beyond a reasonable doubt that the defendant was not entitled to use deadly force or that the force was excessive. In murder cases, excessive use of deadly force in self-defense is manslaughter.Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006); see also Commonwealth v. Glover, 76 Mass. App. Ct. 799, 804-09 (2010).


Good article! I'd also remind everyone that every state law varies on use of force. For example in WA State RCW 9A.16.020 is the 'Use of Force' law for WA State.
 

chinto

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"Shooting to kill" will not prevent a lawsuit. In fact, making statements like "I'll shoot to kill" may guarantee a lawsuit. Even assuming you kill the person you believe attacked you, and are not held criminally liable, you'll almost certainly find yourself being sued civilly by the guy's family.

You just might want to be sure that you really understand the law as it relates to using lethal force to defend yourself...


if you are in fear of your life, you "shoot to stop".. which is Politically correct for kill! if you are "shooting to wound" you will get sued and arrested both!!! because at that point you obviously were not in real fear of your life!!

just say I will stop the person trying to kill or badly injure me!! I was in fear of my life! that is what lawyers told me..... I am NOT A LAWYER!! I do not claim to be one.. just passing on what I have been told.
 

jks9199

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if you are in fear of your life, you "shoot to stop".. which is Politically correct for kill! if you are "shooting to wound" you will get sued and arrested both!!! because at that point you obviously were not in real fear of your life!!

just say I will stop the person trying to kill or badly injure me!! I was in fear of my life! that is what lawyers told me..... I am NOT A LAWYER!! I do not claim to be one.. just passing on what I have been told.

Shoot to terminate or stop, the act.
You're shooting to stop the threat -- not kill the person making the threat. The difference is partly semantic, I agree. But it is important, because shooting to stop the threat shows that you intend to stop shooting as soon as the threat is ended, whether or not the person making the threat is dead. Shooting to kill implies that you'll continue shooting until the the person making the the threat is dead.

It kind of reminds me of a story about the Gurkhas in WWII. The story is that a Gurkha soldier was assigned to bury 10 dead Japanese bodies that had been piled up... Well, as he begins to prepare, he discovers that one of the "bodies" hasn't quite become deceased yet. He draws his kukri and is preparing to finish the Japanese soldier off when a British officer stops him, horrified. The officer asked what he was doing, and the Gurkha soldier told him "I was ordered to bury 10 dead Japanese; there are only 9..."
 

szorn

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While it's important to know the use-of-force laws of your state and jurisdiction as well as the laws of those states and areas you intend to travel, the most important thing is to have a proper understanding of general use-of-force via AOJ as this essentially applies to all states and jurisdictions- http://www.useofforce.us/
 

PhotonGuy

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I am looking for any organization that believes in the right for people to use force in confrontations, and preferably an organization that would lobby for that right.
 
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Tgace

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I am looking for any organization that believes in the right for people to use force in confrontations, and preferably an organization that would lobby for that right.

What?

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ballen0351

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I am looking for any organization that believes in the right for people to use force in confrontations, and preferably an organization that would lobby for that right.
Depends on what you mean by confrontation. You don't have a right to use force because someone is giving you a hard time. You do for the most part have the ability to defend yourself when left with no other option
 

PhotonGuy

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Depends on what you mean by confrontation. You don't have a right to use force because someone is giving you a hard time. You do for the most part have the ability to defend yourself when left with no other option

It depends on what you define as a hard time. Most people would call a physical confrontation a hard time. If somebody starts a physical confrontation you do have the right to fight back in self defense.
 

ballen0351

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It depends on what you define as a hard time. Most people would call a physical confrontation a hard time. If somebody starts a physical confrontation you do have the right to fight back in self defense.

Not always and not every where. Laws vary by location. Your best bet is to look up your local laws
 

PhotonGuy

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Not always and not every where. Laws vary by location. Your best bet is to look up your local laws

What Im trying to do is to make it so that a person can use force in a confrontation and not get in trouble. People have the right of self defense. While I abhor picking fights, there is no reason why a person shouldn't be allowed to fight back if somebody picks a fight with them. Bullying should not be tolerated, at all. I am trying to see if they're organizations that lobby for laws to be passed that allow for people to use force in self defense, and to get rid of laws that don't allow it.
 
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Tgace

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What Im trying to do is to make it so that a person can use force in a confrontation and not get in trouble. People have the right of self defense. While I abhor picking fights, there is no reason why a person shouldn't be allowed to fight back if somebody picks a fight with them. Bullying should not be tolerated, at all. I am trying to see if they're organizations that lobby for laws to be passed that allow for people to use force in self defense, and to get rid of laws that don't allow it.

What laws out there currently don't allow this?

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SteveNC

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What Im trying to do is to make it so that a person can use force in a confrontation and not get in trouble. People have the right of self defense. While I abhor picking fights, there is no reason why a person shouldn't be allowed to fight back if somebody picks a fight with them. Bullying should not be tolerated, at all. I am trying to see if they're organizations that lobby for laws to be passed that allow for people to use force in self defense, and to get rid of laws that don't allow it.

First off you do have the right to defend yourself BUT you have to understand the full extents of the laws in your state. Please don't take any offense to this but I don't think you really understand what self defense is truly about. If what you are advocating for came to fruition it would be great news for people who thrive on violence.
 

ballen0351

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What Im trying to do is to make it so that a person can use force in a confrontation and not get in trouble. People have the right of self defense. While I abhor picking fights, there is no reason why a person shouldn't be allowed to fight back if somebody picks a fight with them. Bullying should not be tolerated, at all. I am trying to see if they're organizations that lobby for laws to be passed that allow for people to use force in self defense, and to get rid of laws that don't allow it.

What do you mean by picking a fight?
 

PhotonGuy

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What laws out there currently don't allow this?

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From what I heard, in the aftermath of a confrontation if the other person is hurt worse than you, you can get in trouble, even if they took the first punch.
 

PhotonGuy

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First off you do have the right to defend yourself BUT you have to understand the full extents of the laws in your state. Please don't take any offense to this but I don't think you really understand what self defense is truly about. If what you are advocating for came to fruition it would be great news for people who thrive on violence.

People who thrive on violence are people that start fights. I don't advocate that and I don't think the law should allow it. What I do advocate is using force to stop fights.
 

SteveNC

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People who thrive on violence are people that start fights. I don't advocate that and I don't think the law should allow it. What I do advocate is using force to stop fights.

I could spend an eternity on why a lawyer could still make your life a living nightmare but I wont. I do however want to ask you a question. If laws were changed to give you "the good guy" a so called legal leg to stand on how would that change your mentality about protecting yourself? Would you be more inclined to use force instead of walking away when you could? It seems to me as if you desire some built in protection in a court of law that gives you more freedom to potentially put yourself in a bad situation. A punch from a drunk and a knife attack are two different things
 

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