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  • Legal Question

    Posted by James R. Rummel on November 17th, 2009 (All posts by )

    Long time readers know that I am an accredited self defense and home security expert with close to two decades of experience. Ever since my state legalized concealed carry, I am routinely armed not only with a concealed firearm, but also a variety of less-lethal self defense devices.

    Lethal force is considered to be a reasonable response to a threat of grievous bodily harm or death. At least it is here in Ohio.

    So what presents this threat? When would a reasonable person think that they are in danger of losing their lives, or becoming disabled or disfigured? Easy enough to determine if the criminal attacker is armed with a knife or gun, but it can be tricky if they aren’t.

    Interesting video over at Gateway Pundit, where two people were the victims of an unprovoked attack by protesters taking part in a sidewalk chant organized by ANSWER, the Communist group.

    Notice that the victims are outnumbered, and the attackers are using the wooden shafts of their protest signs as weapons. Also note that one of the victims was young and fit, and was smart enough to use the tripod of his video recorder as a makeshift self defense device against the perps.

    Am I suggesting that the victims should have shot their attackers? No, and not least because I agree with comment #16 at the GP post. But I am wondering if it would have been legal.

    Any lawyers amongst our readers want to tackle this one?

     

    35 Responses to “Legal Question”

    1. Nicholas Says:

      Certainly people have been killed by being punched, kicked, pushed, or hit with a make-shift club, and not just on isolated occasions.

      I don’t know anything about the legal question but I find it hard to rule out the possibility that somebody who is trying to hit you with any part of their body or any blunt or sharp object could cause lethal harm, especially if they are large and muscular or in a group.

    2. beachrat Says:

      Normally the answer would lie in the specifics of state law, e.g. whether or not there’s a requirement to “retreat”, for example, and other stipulations regarding the circumstances and threat.

      However, I find that in NC most defensive firearms cases of which I’m aware (1) occur in the defender’s home, and (2) are often not even brought before a grand jury (i.e., no charges are brought).

      As I recall from CCW class here, there is a requirement here to retreat when you’re outside your home, but if you are not able to retreat you can defend yourself. After that it is up to the cops/DA I presume to determine whether or not your fear for your life was in retrospect so clearly justified that no charges would be filed, or if they should take it to a grand jury to consider indictment (which may or may not happen, depending on the community) and on to trial.

    3. shannon Love Says:

      The bottom line legal standard is that you use lethal force if you can “reasonably” conclude that you were in serious danger at the time. That reasonableness is in turn dependent on the context of the events.

      For example, bar fights are common and expected, especially in certain bars. Although, people have been killed in bar fights, the reasonable expectation is that a grown male is in no serious danger from a drunken brawl. Heck, when you’re young and stupid, a bar fight is part of the night’s entertainment. It would be unreasonable to shot someone in your average bar fight because although there was violence it the expectation would be that it would not be lethal. In fact, people who whip out weapons in a bar fight are viewed with disgust as wimps and cowards.

      Likewise, brawls at political events are seldom lethal. They’re mostly the result of overheated tempers and people don’t set out to kill but just to shove. Their intent is to drive the other party out of the public space.

      The upshot is that you would have a hard time trying to convince a jury that you could have reasonably thought you were in serious danger in a political brawl.

    4. Kirk Parker Says:

      Shannon, what part of the country are you from? Because out here, apart from the far, far Wobbly past that no living person actually remembers, there aren’t any political brawls to speak of.

    5. James R. Rummel Says:

      I would like to echo Kirk’s question. There aren’t even shoving matches between factions here in Ohio.

    6. david foster Says:

      There has always been a certain amount of political violence in America, but it has been minimal compared with many other countries. For the last several decades, though, the idea of shutting down opposing views–both by administrative action and by disruption and violence–has become increasingly common on America’s university campuses: see my goon squad thread for examples. It was only a matter of time until this attitude spread to the larger society.

    7. shannon Love Says:

      Fist fights over politics used to be fairly common in pre-WWII America.

      More to my point, in the context of a rally, with dozens of witnesses, usually in broad daylight, it would not be very reasonable to believe that you were in danger of your life. It’s more like the heated argument on a job site that leads to a shoving match.

      There are exceptions of course. If the black anarchist were rioting, you could reasonably assume that you were in serious danger.

    8. Abdul Says:

      Shannon,

      One of the protestors was kicked in the head while down. both were chased into traffic. If that’s not reasonable anticipation of deadly harm, what is?

      When I saw the video, I thought “Thank God that’s not me, because I don’t want to have to shoot someone for something so stupid.”

    9. Kirk Parker Says:

      To continue my thought, given the fact that physical violence is fairly unknown here, what else do we have to compare an assault at a political event to?

      Perhaps I should note the famous Westlake shooting of 2006 (more here.) In this case a completely unarmed crazy person (aged 25) assaulted a man in his 50’s, knocked him to the ground, and began kicking him. The victim shot his assailant once, killing him. The victim was detained briefly by police and then released; no charges were filed (meaning the King Country Prosecutor’s Office decided it was a justifiable use of force.)

    10. Kirk Parker Says:

      Oops, where’s my layers of editors and fact-checkers when I need them? Make that “physical violence in a political context is fairly unknown here”.

    11. Fat Man Says:

      I do not think that there can be a duty to retreat when you are being beaten. A duty to retreat can only be meaningful if 1) you are being threatened, 2) you can safely retreat, and 3) retreating will end the confrontation. When you are already being be beaten, it is too late to retreat. Nor is retreat a meaningful concept in the case of unprovoked attack, i.e., an attack that was not preceded by a warning from the aggressor that he was about to attack.

      I doubt that self-defense is a viable defense in the typical bar fight scene. Usually, there are plenty of warnings, and opportunities to retreat.

      Finally, I do not think that comment 16 was well reasoned. If you are a leftist, or an idiot (but I repeat myself), it is important to be the victim, and to have the MSM, crying over you. The MSM will not cry over victims who are not on its approved victims list, so it does no good for a tea party-ier, or a conservative to be a victim. Might as well make it harder for the next leftist thug to do what comes naturally.

    12. Kirk Parker Says:

      in the context of a rally, with dozens of witnesses, usually in broad daylight, it would not be very reasonable to believe that you were in danger of your life.

      Well, except for the “rally” part, that exactly describes the Westlake shooting I cited. The context was a busy Saturday morning in Seattle’s premier upscale urban shopping area.

    13. Robin Goodfellow Says:

      I think in this particular case it’s pretty clear, had the victims used a concealed pistol to defend themselves, even with lethal force, it would have been justified. The victims were clearly in danger of great bodily harm.

      Also, in response to Kirk, Washington is a “Castle Doctrine” state, in that the state supreme court has found that there is no “duty to retreat” when someone is attacked (assuming they’re not trespassing, etc.) Florida’s legislature has not passed a Castle Doctrine law and the courts have not set such a precedent, yet, so it’s hard to say how things would shake out legally there in the same case.

      Also, it’s silly to say that one need not fear being in danger for their life if they are in a crowd. Being beaten is being beaten. Many people have been bludgeoned to death amidst a crowd of onlookers, they are no guarantee to your safety. Recently there was a case in Britain where a bouncer killed a man with a single punch, with many onlookers. It helps nobody, except the bullies, to take a blase attitude towards violence. It might be publicly accepted that fights at political rallies or in bars are de rigueur and to be tolerated, but I believe that is a mistake.

    14. Kirk Parker Says:

      Robin,

      You’re right about WA, but is it common to use the term “Castle Doctrine” to apply to situations in public rather than at home?

      Regarding the latter, I was in an online discussion recently about the use of force against intruders, and one of the participants emailed someone in the KC Prosecutor’s Office and asked them about it. This person’s reply started out with the usual boilerplate about reasonable person, considering the circumstances, etc, but then went on to say: “No one here recalls ever prosecuting a homeowner who shot an intruder.”

      Nice to know they have our backs!

    15. Cousin Dave Says:

      It’s tough because if you are knocked down and are on the ground being beaten, you may only have a few seconds to act. At what point can you meet the legal standard for self-defense? That point may not be until after you have been so severely injured that defense is physically impossible. If it were me, another consideration might come into play — if I shoot now, I can deal with the consequences later. Being legally in the right doesn’t matter if I’m dead.

    16. Tatyana Says:

      To those who doubted existence of bar brawls of political nature – here’s a recent one, in NYC. Not with the outcome I’d prefer, unfortunately.

    17. Tom Holsinger Says:

      I am a California attorney. I am not familiar with the precise circumstances here but, if this was a group assault & battery attack as opposed to one by an individual, lethal force in self defense, and in defense of others, might have been proper. There is a general duty to retreat rather than use lethal force when attacked by an individual, though not in special circumstances such as a major disparity in combat effectiveness, i.e., a small woman can shoot a large male attacker dead but not vice versa.

      This changes when it’s a two or more against one situation. At that point retreat is much less of an option.

      Even one on one attacks can be dangerous, particularly when the victim is caught by surprise. One of my clients was murdered in such a fashion at a gas station while on the way to a deposition. He didn’t appear and the other attorney promised a motion to compel. I discovered what had happened from my client’s family later on.

      He was pumping gas into his car when a larger youth came at him front the side in an unprovoked attack, hit him in the head with a fist and knocked him over backwards. He hit the back of his head on a concrete lip around the gas pump, which fractured his skull and inflicted a fatal subdural hematoma. He died in the ambulance about 20-25 minutes after his injury.

      I.e., being knocked down on a concrete sidewalk can kill you.

      So, given that this seems to have been a group attack, lethal force in self-defense might well have been appropriate.

      Better to be judged by twelve than carried by six.

      Perhaps someone will describe the attack. I can’t watch on-line videos on my office computer.

    18. Anonymous Says:

      My favorite response to fool reaching for a weapon; “That had better be a sandwich because you are going to have to eat it.”

      Ah yes the good old days.

      Almost no one has guns in Canada. We just duke it out. You can have your massive gun death stats. It’s funny that you think it makes you safer.

    19. Kirk Parker Says:

      Tatyana, who said anything about doubting political bar brawls occurred? I very specifically said (a) I was taking about Washington state, and (b) talking about at political events. No one who knows anything about bars will be surprised to learn that XYZ brawls happen at bars.

      Anonymous jokester, if you had read any of the cited material or the comments here, you would have realized that the assaults and occasional fatalities referred to happened without the assistance of firearms.

    20. tyouth Says:

      Florida’s “no retreat” law. The new meat is in the second bullet I believe. http://www.cfif.org/htdocs/…/in…/florida-self-defense-law.htm – Cached – Similar

      he Florida law is a self-defense, self-protection law. It has four key components:

      * It establishes that law-abiding residents and visitors may legally presume the threat of bodily harm or death from anyone who breaks into a residence or occupied vehicle and may use defensive force, including deadly force, against the intruder.

      * In any other place where a person “has a right to be,” that person has “no duty to retreat” if attacked and may “meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another to prevent the commission of a forcible felony.”

      * In either case, a person using any force permitted by the law is immune from criminal prosecution or civil action and cannot be arrested unless a law enforcement agency determines there is probable cause that the force used was unlawful.

      * If a civil action is brought and the court finds the defendant to be immune based on the parameters of the law, the defendant will be awarded all costs of defense.

    21. Kirk Parker Says:

      Tom Holsinger,

      There is a general duty to retreat rather than use lethal force when attacked by an individual

      I assume you’re referring to California; places that have passed explicit stand-your-ground laws, or that have case law to the same effect (e.g. WA) do not impose such a duty.

    22. Tom Holsinger Says:

      Kirk

      A general duty under American common law means one which is generally applicable regardless of the particular jurisdiction involved, i.e., is a matter of American commmon law applicable in most or all states save when modified by statute, and was originally based on the common law of Britain.

      That there was a general duty to retreat in that situation did not, however, mean that was a uniform & invariable duty to retreat. It merely meant that there was a duty to retreat when a “reasonable man” could safely retreat, and quite broad discretion was afforded citizens who used lethal force in defending themselves from attack.

      The legal duty to retreat from attack in public areas, rather than use lethal force, has existed in most, all or almost all American states for our entire history. It remains the law in California. Some states have since changed this by statute, and those are the ones you refer to.

      Those changes were made because aggressive law enforcment agencies and prosecutors often ceased to use the common sense God gave a goose in bringing criminal charges against people who reasonably used lethal force in defending themselves or others against attack in public areas. This most commonly happened in areas dominated by anti-gun nuts. The police in such areas, plus prosecutors motivated by political ambition, tried to disarm citizens and generally deprive them of their right to self-defense. Some here are familiar with that process, which is most advanced in Great Britain.

      When American police and prosecutors tried similar over-reach, though, citizens have often pushed back by denying them the discretion they were abusing, and enacted specific statutes changing the general rule I mentioned so that citizens are not subject to the commmon law “reasaonable man” requirment to retreat from physical attack in public areas before using lethal force.

      In those areas the new statutes specifically permit immediate use lethal force. Should these statutes become effective in most states, they will become the new general rule.

      But right now such states are a minority, and the general rule is what I said. It remains the law in California – I just asked a county sheriff lieutenant, and he agrees with me.

    23. Tom Holsinger Says:

      Kirk,

      Consider this hypothetical situation in a state where the general rule I described applies.

      Two groups of rival demonstrators, with one set attacking the other. 2-3 attackers surround a single victim and beat him or her. A bystander, not necessarily one of the victim’s group, may lawfully defend the single victim by pulling a gun and shooting the attackers dead, under the “defense of another” doctrine.

      The guy with the gun is not himself under attack, but he could lawfully use lethal force to defend the victim as the victim is unable to retreat. There are circumstances under which this would not be true, such as the attackers being four years old and attacking by smearing the victim with ice cream cones, but there is a general rule here, and that is how the analysis goes.

      My point here is that the rules for one on one bar fights simply do not apply in group attacks. The latter are inherently more dangerous, and people in groups who attack others may lawfully be shot for it. The duty to retreat before using lethal force in defense rarely exists when defending yourself or others against group attacks.

      There is a special award waiting for lefties who think they can get away with that kind of political violence. It’s called a Darwin Award.
      http://www.darwinawards.com/

      Think of it as evolution in action.

    24. Kirk Parker Says:

      Tom,

      That’s a great summary; the one thing you didn’t address was places like WA that have done away with duty-to-retreat via case law. Does this mean our common law is different than yours now?

    25. Tom Holsinger Says:

      Kirk, if the prior common law duty to retreat was negated by Washington state court decisions alone, as opposed to legislative action by statute, then the Washington common law has changed. I am not aware, though, of any state commmon law not requiring retreat in public areas, even in Texas. Texas law enforcement officers & prosecutors have, as far as I know, just been more lenient than those in most states in deciding whether to charge such offenses.

    26. James R. Rummel Says:

      “Almost no one has guns in Canada. We just duke it out. You can have your massive gun death stats. It’s funny that you think it makes you safer.”

      I’m going to have to echo Kirk here, and also point out that no firearms are involved.

      Please also note that the victims are unarmed, outnumbered, and their attackers are all armed with makeshift clubs. If the police had not arrived on the scene when they did, causing the perps to leave off their attack, then God only knows what would have happened to the two victims.

      Unless the victims had firearms. Then they would have been able to defeat aggression, even though they were faced with overwhelming odds.

      So it looks like firearms actually would have made those two safer!

    27. Kirk Parker Says:

      Tom,

      The specific (Supreme Court) decisions I’m aware of are 137 Wn.2d 533 State of Washington v. Studd (which I can’t seem to find online anywhere) and 150 Wn.2d 489 State of Washington v. Reynaldo Redmond.

      The opening paragraph of the latter’s majority opinion says it all:

      This case involves a student fight in the parking lot of a local high school. Petitioner, Reynaldo Redmond, appeals a Court of Appeals decision affirming his jury conviction for second degree assault. Because the trial court committed a prejudicial error when it did not instruct the jury that persons acting in self-defense have no duty to retreat when assaulted in a place they have a right to be, we reverse and remand for a new trial. [emphasis added]

    28. TCK Says:

      You know, up until now I would have agreed with all of the people insisting we need to deal with this via the “ballot box.” However, with the voter intimidating thugs, on top of MULTIPLE attacks on peaceful demonstrators, and then finally a senior citizen getting brutally attacked by a gang of thugs after already being knocked to the ground, I’m ready to channel the spirit of Fighting Fred Funston. We need to hang the treacherous savages, every last damn one of them.

    29. Tom Holsinger Says:

      Kirk, I read the State v. Redmond citation and it appears that the rule involved a limiting instruction, i.e., one which defined the limitations of the duty to retreat, rather than repealing it outright. The Washington Supreme Court made it very clear that a duty to retreat exists under some circumstances. Here it held that there sometimes is a duty to retreat, as well as there sometimes not being such a duty, and that the prosecutor’s argument invited jury confusion between the two. Failure to give the requisite jury instruction as to when there was no duty made the guilty verdict erroneous, and the matter was remanded for new trial.

      I.e., the verdict was not reversed outright. The Washington Supreme Court did not order that the accused be discharged, and did not hold that the accused had no duty to retreat. It held that he might, and he might not, have had a duty to retreat under the circumstances, and that a properly instructed jury could find it either way.

    30. Kirk Parker Says:

      Sure, but isn’t it pretty clear from the bolded part of the citation, what the Court thinks one limitation is? And that being that there is no duty of retreat when “assaulted in a place they have a right to be”? I realize they remanded rather than vacated, but what they’re insisting for the jury instruction sounds very, very broad to me. What am I missing?

    31. Tom Holsinger Says:

      Case citations defining what “a place they have a right to be” is. The fact situation in the Redmond citation was pretty broad.

    32. Anonymous Says:

      Tom, you’ve been very patient trying to explain all this (and yeah, I’m not at all fluent in Lawspeak!) I still don’t understand what sound like your reservations here.

      1. The state Supreme Court remands a case because the trial court didn’t instruct the jury that there is no duty to retreat when someone is in a place “where they have a right to be”. (And despite my disclaimer above, I know enough to not expect a reversal here, because the jury still needs to be the one to apply the facts and see where they fit under the newly-revised instructions as to the law.)

      2. “Where they have a right to be” should include just about any public place, or so I would assume, along with businesses and other venues that are assumed to be open to the general public.

      3. In the long run, prosecutors are going to be more careful about bringing charges in the first place in cases like this, just as much as if the legislature had added statutory language to the same effect. So in the long run, haven’t then in effect declared a Stand Your Ground doctrine, and is that not actually the state of law here in WA?

      Number 3 is my real interest, of course–not that victims necessarily fight back more often when retreating would in fact be a safe and viable option, but rather that the courts have much less leeway to second-guess, in complete safety and at as long as leisure as they care to take, a decision that the victim had to make in a split second.

    33. Subotai Bahadur Says:

      Here in Colorado we have the “Make My Day” law, which pretty much matches Tyouth’s explanation of Florida law.

      We also forced through [over the objections of both parties] a liberal concealed carry law. We’ve had that for well over a decade, and not had any misuses by a CCW permit holder.

      Now, moving on to the subject of “physical violence in a political context”. We are seeing an upsurge of this. It has been specifically encouraged by the President and White House. I will cite some examples, and I am sure that there will be more.

      1) The use of New Black Panther Party armed thugs to intimidate white voters from the polls. In this case, AFTER they had pled guilty, the White House directed the DOJ to drop the charges.

      2) In May of 2009 the creditors of Chrysler who were holding out against losing all of their assets to government seizure in the nationalization of the company received threats from both the IRS, and death threats via phone.

      3) Also in May, AIG employees who were retained specifically to unwind the mess that the now absent crooks had left the company were told that their pay [which had been agreed to by the Treasury Secretary, and included specifically in the “Stimulus” bill signed by the President]would have to be returned or taxed away at a rate of 100%. The White House called out ACORN and their puppet “Working Families Party” to hold demonstrations outside of the AIG employees homes to threaten their families, and the President himself stated that he was, “all that stood between them and the mobs with pitchforks”.

      4) Town Hall Meeting in Texas with Democratic Congressman. “Security Force” of people wearing Democratic Party t-shirts physically threatening senior citizens who were objecting to the Health Care nationalization.

      5) St. Louis Town Hall meeting with a Democratic Congressman. “Security Force” of SEIU members in union t-shirts attack Kenneth Gladney outside after the meeting breaks up, for the crime of being black and not a Democrat. Gladney is beaten, knocked to the ground, kicked, and receives a concussion. The attack is recorded on video. The police arrest the attackers, including the main assailant who is a) an SEIU official, b)an NAACP official, and c)a former Democratic candidate for mayor of St. Louis. All those arrested are immediately released without bail, and now no one is being prosecuted. The Democratic District Attorney is claiming that the site of the assault is for some reason not part of his jurisdiction, so he won’t file charges.

      6) Now we have the assault with clubs by Leftist thugs noted above. Does anyone have any expectation that there will be a prosecution of the assailants?

      Does anyone else see a common thread running through this? The attacks so far have been one-sided [and unpunished]. Since it seems to be a successful tactic, I am sure that the Left will continue to do so until forced to stop.

      The questions are how, and by whom? Any Conservative who defends himself or others is sure to face the full weight of the law. GATEWAY PUNDIT’s comments note that self-defense by a firearm will lead to a crackdown on all firearms owners. Yet, that may be what will happen. Or it could be that clubs will be met with clubs, etc. Or perhaps vigilantes will visit various thugs when they are alone at night. Who knows? One thing is sure. As violence becomes the currency of political power from the government and its supporters, it will eventually be answered.

      We have seen countries where that situation obtained.

      Die Fahne hoch! Die Reihen fest geschlossen!

      The politics differ. The tactics are the same.

      Subotai Bahadur

    34. Tom Holsinger Says:

      Kirk, the People vs. Redmond decision flatly says that “a place where they have a right to be” DOES NOT include just about any public place. By remanding they made a firm statement that a jury could find it exludes the facts of the Redmond assault. If the public parking lot in the Redmond decision is not a public place, very little is. A “public place” as you and I define it is definitely not the same thing as “a place where they have a right to be”. There is almost certainly some overlap, but they are not the same thing. That was my point in responding to you.

      Getting back to the question posed by James Rummel, I viewed the video of the assault and changed my mind. The victims had every legal right to shoot their attackers dead, and so did any passer-by. The attackers were using their placard sticks as weapons, and that escalated the threat level into lethal force range. The placard sticks were not arguably deadly weapons, they WERE deadly weapons, and any prosecutor could charge the perpetrators with conspiracy to conduct assault & battery with deadly weapons, i.e., the perpetrators could be charged with multiple felonies each. Given adequate identification of the perpetrators as perps, I could get juries to convict each of them on such charges.

      The manner in which the assault was conducted has legal ramifications which are crtical. Mr. Rummel noted this in his initial post. I didn’t understand it, though, until viewing the video. His first impression was correct. The attackers could all have been lawfully shot dead at the time. My one addition to his opinion is that any passer-by could lawfully do so under the defense of another doctrine, and not merely the victims in self-defense.

    35. Tom Holsinger Says:

      Kirk,

      You seem to be missing my main point. This was a mob attack with deadly weapons. I and several of my friends, when younger, could each have used those placard sticks as spears against throats and whatnot to kill all of the attackers in at most 2-3 minutes. For purposes of criminal complaint pleading purposes, those placard sticks count as deadly weapons.

      There is no duty to retreat when attacked with deadly weapons. Read the description of the State v. Studd case in your citation to State v. Redmond. People are entitled to immediately use lethal force against attack with deadly weapons, including defense of others as well as self-defense.

      Any armed passer-by observing the attack at issue here would have been justified in shooting all of the attackers dead. They were asking for Darwin Awards.