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Old January 12, 2012, 10:36 PM   #26
mehavey
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From the Op Cit Cite:

"... liable for all consequences resulting from his or her tortious (usually negligent)
activities leading to an injury to another person, even if the victim suffers an unusually
high level of damage (e.g. due to a pre-existing vulnerability or medical condition)...."


The injury must derive from negligent and/or unlawful action. As the Clerk was engaged in
neither -- being in defense against an unprovoked attack by someone else wielding deadly
force -- the "eggshell skull" concept should not be applicable.
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Old January 12, 2012, 10:47 PM   #27
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mehavey, note the bold, italicized, and capitalized word in my first post.

IF it's found that he used too much force to hold her, he's on the hook for her death. It's no defense to say that he didn't know she was especially fragile; that's the point of the eggshell skull doctrine.

Of course, IF it's found that the level of force he used was reasonable under the circumstances, then the consequences of using that force don't fall on him.

The legal vulnerability arises if someone says, "Well, yeah, but he didn't have to hold her down, he coulda just..." -- and the jury agrees that he used more force than was reasonable under the circumstances. If they decide he used more force than he should have, he'll be on the hook for the consequences of using that force, which include her unexpected death.

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Old January 12, 2012, 11:30 PM   #28
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Excellent post about the Eggshell Skull Rule, pax. This is why I come to this forum.

It looks like we now have to ask if what the clerk did was reasonable force... Holding someone with a knife down after they've tried to attack you with a knife? People have been shot over less and the shooter has not been charged...

edit: I don't think the argument that "he didn't have to hold her down" is a very good one... It seems that the argument is based on an impossible-to-test hypothetical. Any suggestion on what he could have done to result in her not dying is untestable.
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Old January 13, 2012, 12:33 AM   #29
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It will depend on whether VT law allows the use of physical force by a non-LEO to detain a violent felon. If it does, the clerk should have no problem. If it does not, the clerk would probably need to argue that he was not detaining her, per se, but was afraid she would resume the attack if he let her up.

Edit: in MO, as a non-LEO, I would have to observe somebody commit a class A felony, or see them attempt escape through use of a deadly weapon, before I could use deadly force to stop the escape. The threshold for use of simple physical force is lower, but there is a threshold.

Hence my question as to VT law.
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Old January 13, 2012, 06:42 AM   #30
mehavey
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Pax/Kathy....

Most all of us are aware that a prosecutor in search of either politics or headlines can indict a ham sandwich for its own demise. The common law check/balance to abuse of that power has been codified within

"the right to a speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defence...."


We depend upon the common sense of the 'Jury' being able to see through such a prosecutor's ploy; and we depend upon that Assistance-of-Counsel to guard against Holmes' observation that "This is a court of law, young man, not a court of justice."

I'm getting a sense of déjà vu here concerning another recent thread on the consequences of deadly force -- and that need for Assistance of Counsel even when in the obvious right.
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Old January 13, 2012, 08:30 PM   #31
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Quote:
but IF it's found that he used too much force, he's on the hook for the entire consequences.
Quite true Pax, BUT, wouldn't the fact that the actions of the clerk were a direct result of the crime being commiteded by the woman make it, ultimately her fault for what resulted?

I understand the intent of the eggshell rule, but, how does defending onself against attack (robber did have a knife) turn the robber into the victim?

Now, under the circumstances, where the robber was held down (detained / restrained) by a private citizen, and not a LEO might change the situation, in the legal sense, in that jurisdiction. Because holding the attacker for the police goes beyond self defense. I don't know the VT laws covering that.
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Old January 13, 2012, 08:51 PM   #32
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I read ALL of the comments to that article, and believe it or not, there was not one single bleeding heart comment in all 54 comments posted. If this AG guy is trying for free pre-election points, he just lost.
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Old January 13, 2012, 09:43 PM   #33
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Is the "eggshell skull" doctrine present in VT criminal law as well as civil? Seems kind of unfair to me. A person defending themselves has to make a decision to use force based on information gathered sometimes in the space of only a few seconds. How can anyone (especially someone with no medical training) make any kind of reasonable determination regarding the possible health problems of an aggressor?
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Old January 14, 2012, 12:34 AM   #34
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The eggshell skull rule would not apply to an innocent defender.

OTOH, a defender who had been involved in escalating tensions beforehand; a defender who turned out to be protecting a third party who had been involved in escalating tensions beforehand; or a defender who then opted to continue the fight after the aggressor had surrendered or fled (barring certain exceptions) could very easily find the eggshell skull rule would attach to him.

In this case, if VT law allows physical force not only for defense, but for detention of a violent felon who has committed a violent felony in one's presence, there really should be no viable prosecutorial angle.

If it doesn't, then the DA could argue that the clerk had successfully defended himself, and had disarmed the woman, but then exceeded his rights by using physical force to detain her.

I am NOT endorsing that approach, I am just saying that would be the way the DA could go at it, depending on how the law is written.

This is why it's a very good idea to know the deadly force and physical force justification rules where you live.
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