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Old November 19, 2012, 10:08 AM   #126
OldMarksman
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Quote:
Posted by teeroux: Some of you guys I just don't get. Naked scumbag perfoming sexual acts in front of a woman and child is capable of just about anything beyond that. Crazy or not the current actions of the perp give more than a reasonable expectation that person may harm you.
Well, OK, but that has nothing to do with the threshold for justification in the jurisdiction at hand.
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Old November 19, 2012, 10:47 AM   #127
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So what is a gun if it's not loaded.... a club!!
This incident demonstrates that such hyperbole is, indeed, hyperbole. There are instances in which a defender has the time to chamber a round. The problem is that a defender doesn't always have the time to chamber a round.

I carry chambered, but I have also pointed out more than once that some methods of carry that do not raise such vehement objections - kangaroo pouches, ankle holsters, belly bands, tuckable holsters, for example - create similar delays in presentation, at least in some situations, and often require two hands. I am not saying that carrying without a round chambered is preferable, but neither is a person who chooses to carry thus as helpless as someone without a firearm. No offense, but it is not a club - it is a firearm that, with a certain amount of training and awareness, can be made ready for defense in fairly short order.
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Old November 19, 2012, 10:20 PM   #128
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But it wouldn't matter, not one iota; the question is, is there evidence supporting a reasonable belief that unlawtul force was presently threatened.

From the standpoint of whether she was lawfully justified, that's it. Period.
unfortunately you are incorrect. things are not that black and white.

Quote:
That is completely irrelevant to the question of justification.
Sir, you are way off base and therefore out of line. A lawyer can much more easily prove substantiation(not sure if that's a word) if his client pulls a gun on a convicted sex offender with past issues rather than an 18yr old valedictorian who has never had any problems with the law. You can tell me until you turn blue it doesn't matter, but it won't change the realism in it. There are often many factors that make a difference in 'crimes' not based solely on a definition in a book...another example is how one's size, gender, etc can be perceived as threatening in an argument.
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Old November 19, 2012, 10:51 PM   #129
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Posted by youngunz4life in response to "the question is, is there evidence supporting a reasonable belief that unlawtul force was presently threatened.": unfortunately you are incorrect. things are not that black and white.
What is it about the law in Washington State that you believe would support that position?

Quote:
Sir, you are way off base and therefore out of line.
In what way?

Quote:
A lawyer can much more easily prove substantiation(not sure if that's a word) if his client pulls a gun on a convicted sex offender with past issues rather than an 18yr old valedictorian who has never had any problems with the law.
There are states in which the perp's background, if unknown to the actor, might well make a difference. Do you know which ones they are?

But Washington is not one of them.

And if you commit a crime, and if you haven't done so before, that may make a difference in sentencing, but it will not affect the question of guilt.

Quote:
You can tell me until you turn blue it doesn't matter, but it won't change the realism in it.
Do you have a legal basis for that assertion?
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Old November 19, 2012, 11:19 PM   #130
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OldMarksman, I am not a lawyer. However, I have been told by former prosecutors and defense experts that the alleged perpetrator's background can be brought up in almost any jurisdiction, as it pertains to past patterns of behavior and their relevance to the behavior the shooter/defender claims to have seen evinced.

In other words, if a BG has a prior history of using a crowbar to threaten and then attack people as they get out of their car, in their driveway, and if the client claims that the BG threatened him with a crowbar as he was getting out of his car, then the odds are good that past history will be allowed, at least as it relates to that specific MO.

OTOH, the simple fact of the BG's prior history is otherwise irrelevant, unless the client can prove they had prior knowledge of that history.

Example, a woman knows that a particular man in her neighborhood has previously been convicted of rape or sexual assault. If she can establish that she knew that prior to her encounter with the man, then his history (or what she knew of his history) would be relevant.

Frank Ettin or Spats, please feel free to correct me.
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Old November 20, 2012, 12:02 AM   #131
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Originally Posted by MLeake
...I am not a lawyer. However, I have been told by former prosecutors and defense experts that the alleged perpetrator's background can be brought up in almost any jurisdiction, as it pertains to past patterns of behavior and their relevance to the behavior the shooter/defender claims to have seen evinced....
As you know, I am a lawyer, and I'm afraid that you've misunderstood.

In the prosecution of the "perpetrator", i. e., the person whose conduct was defended against, the prosecutor can introduce evidence of that person's past conduct to show a pattern or "common plan or design."

But in a prosecution of the "defender", in defense of which the defender claims self defense, the "defender" can not introduce evidence of the "perpetrator's" past acts, reputation for violence or criminal record unless (1) the "defender" can establish the he/she knew those things; or (2) the prosecutor has put on evidence of the perpetrator's good character to challenge the "defender's" story about what the "perpetrator" did.

So --

Quote:
Originally Posted by MLeake
...In other words, if a BG has a prior history of using a crowbar to threaten and then attack people as they get out of their car, in their driveway, and if the client claims that the BG threatened him with a crowbar as he was getting out of his car, then the odds are good that past history will be allowed, at least as it relates to that specific MO...
No, in the self defense case, that would generally not be admissible into evidence. It doesn't establish that the defendant claiming self defense reasonably perceived a lethal threat. The only way it would get into evidence in the self defense case would be if the prosecutor, for example, put on character witnesses for the Bad Guy who claimed that he wasn't the kind of guy to go around swinging crowbars.

However, if the crowbar wielder was being prosecuted, the prosecutor could put on that criminal history evidence to show MO.

Quote:
Originally Posted by MLeake
...OTOH, the simple fact of the BG's prior history is otherwise irrelevant, unless the client can prove they had prior knowledge of that history...
Correct.

Quote:
Originally Posted by youngunz4life
...A lawyer can much more easily prove substantiation(not sure if that's a word) if his client pulls a gun on a convicted sex offender with past issues rather than an 18yr old valedictorian who has never had any problems with the law....
But as I've noted above, the Bad Guy's history is generally not going to get into evidence if your defending yourself in court claiming self defense.
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Old November 20, 2012, 12:03 AM   #132
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What is it about the law in Washington State that you believe would support that position?
Quote:
In what way?
I explained both of those quotes.



Quote:
There are states in which the perp's background, if unknown to the actor, might well make a difference. Do you know which ones they are?

But Washington is not one of them.

And if you commit a crime, and if you haven't done so before, that may make a difference in sentencing, but it will not affect the question of guilt.
we are in the end humans, not robots. It matters in Washington too. Last I heard one is innocent until proven guilty in a court of law. This woman is pretty much as far away as guilty as you can get(since it is a dream to think she would be arrested for anything in the first place). Sir, you never answered the politics question...forget about that and please forget about waht you think will happen. That being said, do you believe this woman is and/or was guilty of a crime? Please answer if possible and thank you.
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Old November 20, 2012, 12:12 AM   #133
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Originally Posted by youngunz4life
... Last I heard one is innocent until proven guilty in a court of law. This woman is pretty much as far away as guilty as you can get(since it is a dream to think she would be arrested for anything in the first place). Sir, you never answered the politics question...forget about that and please forget about waht you think will happen. That being said, do you believe this woman is and/or was guilty of a crime? Please answer if possible and thank you...
Settle down!

No one is accusing this woman of having committed a crime. No one has finally decided that her conduct was not justified.

We are discussing the standards that apply to determining whether a defensive threat or use of lethal force is legally justified and that the assessment of whether or not it was justified must go beyond the mere fact that it was a good result that we all can applaud.
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Old November 20, 2012, 12:59 AM   #134
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Frank I can appreciate your post, but I wasn't worked up during my post. I honestly am curious with my question + consider it valid.

I feel like this thread is like kirk and spock(even way before I jumped back in)....as in, who is right...there's always two sides to every coin.

Quote:
No one is accusing this woman of having committed a crime.
One could argue that it was leaning in that direction. I am sure at least some posters felt like they had to defend this woman...you as well as anyone probably know the law isn't always like this even though the justice system is its own kind of (emotional) animal...
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Old November 20, 2012, 01:02 AM   #135
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Frank,

I would have sworn that in one class I attended, where Harold Fish was a topic of discussion, the point was made that one of Fish's bases for appeal was that the man he shot had a past pattern of behavior that exactly matched what Fish described as having been displayed toward him.

In the original trial, the defense was not allowed to prevent that evidence.

The instructor of the class I attended said that was a specific point on which the appellate court said the trial judge had erred. Because the past pattern of behavior matched so perfectly with what Fish had described to investigators, it should have been allowed to support Fish's veracity.

It's entirely possible the instructor of the class was in error, but this is what he told us.
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Old November 20, 2012, 01:09 AM   #136
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I meant Spock and McCoy as if it matters...

yes MLeake, no doubt you are right. That is one major point of law in traffic or criminal courts(habitual offenders//those ones are easy).

OldMarksMan, I hope you don't feel like I am trying to call you out or put you down. I just feel like you are unwilling to budge(you might see it the same from your point of view).
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Old November 20, 2012, 01:15 AM   #137
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younggunz4life, OldMarksman and Frank Ettin make some very good points - which should come as no surprise to you or me.

Now, would I as potential juror convict the woman? No... but that might require deliberate jury nullification on my part, because Washington law might call for a guilty verdict were charges to be pressed.

Counting on jury nullification is not a strategy I would recommend.
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Old November 20, 2012, 01:19 AM   #138
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Nobody would; they would just hope for that strategy once they are already in a bind. It doesn't change the fact here what you just stated isn't even an extreme stretch, Frank has pretty much conceded this woman probably wouldn't, won't, andor shouldn't be charged(please correct me if I am wrong & I apologize if it appears I am putting words in your mouth, as I am not trying to).
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Old November 20, 2012, 01:35 AM   #139
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Originally Posted by youngunz4life
..I honestly am curious with my question + consider it valid...
And I think it's leading us off topic. Let's focus on the discussion of the standards that apply to determining whether a defensive threat or use of lethal force is legally justified and that the assessment of whether or not it was justified must go beyond the mere fact that it was a good result that we all can applaud.

Quote:
Originally Posted by MLeake
...I would have sworn that in one class I attended, where Harold Fish was a topic of discussion, the point was made that one of Fish's bases for appeal was that the man he shot had a past pattern of behavior that exactly matched what Fish described as having been displayed toward him....
Ah, but the reason excluding that sort of evidence from the defense was reversible error in Fish was because of the manner in which Fish's credibility was challenged by the prosecution "opened the door" to that evidence. Also, the ruling of the appellate court was very narrow. The appellate court did not rule that the information was admissible. The appellate ruling merely clarified and defined the standards to be applied by the trial court in deciding whether to admit the testimony.
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Old November 20, 2012, 01:49 AM   #140
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And I think it's leading us off topic. Let's focus on the discussion of the standards that apply to determining whether a defensive threat or use of lethal force is legally justified and that the assessment of whether or not it was justified must go beyond the mere fact that it was a good result that we all can applaud.
I can agree with what you are saying above because I can see that straying the topic.

I would like to add though...this is sort of a question that doesn't need to be answered...you and MLeake realize I was talking about past offenses amongst other factors 'coming into play' before court proceedings, right? As in, these factors can play a major or minor role in decisions of an arrest not being made in the first place....

In which case, it doesn't matter whether it can or cannot be added into evidence.
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Old November 20, 2012, 09:29 AM   #141
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No matter what is gained or lost here this has been a very interesting tread. And yes we don't have a lot to go on but like with any good mystery we have to use logic and reasoning to fill in the blanks
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Old November 20, 2012, 09:51 AM   #142
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Posted by teeroux: Some of you guys I just don't get. Naked scumbag perfoming sexual acts in front of a woman and child is capable of just about anything beyond that. Crazy or not the current actions of the perp give more than a reasonable expectation that person may harm you.
So being the "is capable of just about anything beyond that" assessment is valid how?

We are all capable of some pretty horrific things. BTK was married and the deacon of his church and folks knew he wasn't capabe of such horrific acts for which he was accused, but he was. Capability really isn't the issue here, is it? If so, then a lot of us are in potential trouble even though we have done anything wrong (or anything anyone currently knows about).
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Old November 20, 2012, 10:09 AM   #143
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Prior bad acts by your opponent, if they were not known to you the defender at the time you harmed him, are normally not allowed into evidence. They did not have any bearing on the decision you made, the decision for which you are being judged.

Two cases in Massachusetts, Commonwealth v. Adjutant and Commonwealth v. Pring-Wilson, go against that according to that state's supreme court; ditto Arizona in Arizona v. Harold Fish. And in any state, as Frank Ettin has pointed out, if the prosecution "opens the door" with an argument like "you can't believe a nice guy like X would try to harm someone like the defendant," the judge can set the rule aside.
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Old November 20, 2012, 10:22 AM   #144
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^^^^

I almost went into that myself.

Learned it at MAG-20 last year.
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Old November 20, 2012, 10:44 AM   #145
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Some Things to Keep in Mind

  • The fact that you are a "nice guy" with a clean record will not do a lot for you in terms of a charging decision, if you cannot produce sufficient evidence in support of justication after what would normally be an unlawful act.
  • The character of the person whom you shot or threatened will make no material difference, except as noted by Mas.
  • The laws and case law justifying the presentation of a firearm vary widely among jurisdictions; some very fine people have learned that the hard way, much to their surprise. Some states have severe mandatory penalties. It is essential to knw the rules of the road where you live and travel, and it is a good idea to refrain from drawing a firearm unless you have to.
  • What you say during a defensive incident can come back to haunt you and can be very damaging to your case.
  • Likewise, what you say afterward can do you in, and afterward is a long time.
  • In virtually no jurisdictions is it permissible to draw on, threaten, strike, or shoot someone because of the kind of person he is, or because of what he has done (with a few very limited exceptions), unless he presents some kind of immediate danger, the last of these varying according to the jurisdiction.
  • The authorities will weigh all of the evidence that they have; in this case, we have a woman with a disabled child, and some indication that the person approached "aggressively", and both will likely enter into the decision. And we do not know all of the facts.
  • The decision can be a long time in coming.
Those are the legal considerations. If one should ever have to draw, it is important to see the need before it is too late; to be able to do so quickly; and should it come to that, be able to fire instantly.

Last edited by OldMarksman; November 20, 2012 at 11:49 AM. Reason: typos
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Old November 20, 2012, 05:51 PM   #146
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good points oldsmarksman, that being said:

Quote:
The fact that you are a "nice guy" with a clean record will not do a lot for you in terms of a charging decision, if you cannot produce sufficient evidence in support of justication after what would normally be an unlawful act.
sometimes it will, sometimes it won't depending on the incident but one obviously should never rely on this. It can't hurt though, and many times(and many times not) it does make a difference at sentencing.

Quote:
In virtually no jurisdictions is it permissible to draw on, threaten, strike, or shoot someone because of the kind of person he is, or because of what he has done (with a few very limited exceptions), unless he presents some kind of immediate danger, the last of these varying according to the jurisdiction.
While this is true Sir, one can argue via the perp's actions reasonable fears andor concerns (amongst other things) that they felt threatened. Therefore, it isn't out-of-line for this woman(or anyone one looking out for her best interest) to claim that she didn't know what type of sicko this guy was or that she was scared this individual was a sicko.


Quote:
The decision can be a long time in coming
this can often be the case, but I stand by my position firmly that the decision has already been made in this case. The weapon was deemed legal as well as the CCW, and there is no indication that this one is leaning in any other direction.
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Old November 20, 2012, 09:15 PM   #147
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dang you actually let me get the last word on that one.....
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Old November 21, 2012, 09:52 AM   #148
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OK, now that we're past the emotion, let's summarize this from the standpoint of tactics and training.

The original question was whether the woman went too far in drawing her gun. Pax has shown us that justification under the law in her jurisdiction would depend upon whether she had reason to believe that doing so was necessary to protect herself or her child from presently threatened unlawful force.

That's it. Nothing else really matters. Whether we may we have an actor for whom we may be sympathetic-and we do, a woman with a disabled child--doe not show up in the code, nor does our opinion of the person she threatened. Those who insist on believing otherwise need to study more, and to consider some of the very upstanding citizens who have been convicted of felonies after having drawn when it was later not deemed justified, and some of the criminals who have won acquittals in self defense cases.

The threshold in other jurisdictions is different. Penalties for violation very widely.

There may be those who contend that when the outcome is favorable, the actor did the right thing. That doesn't follow. Luck will not always smile on us. We can learn from after action reports on successful encounters as well as from failures.

Personally, I do not think that carrying a semiautomatic pistol without the magazine, or with the magazine unseated, depending upon which report is accurate, is a very good idea at all. True, she was not overcome, disarmed, raped, or beaten, but it is a very good idea to be able to react very quickly to a rapidly unfolding attack. The consequences of failure can be very severe indeed.

We cannot judge from news reports whether drawing was either justified or a good idea. The man reportedly approached "aggressively." We cannot tell whether a present threat of unlawful force existed.

Personally, I do not think it very bright at all to shout "I'll blow your brains out" when pointing a gun at someone who is seated. Had things gone bad, and had there been an earwitness, that could have tipped the scales against her, all other things being equal.

Did she do anything right? Yes indeed. She contacted the police immediately. We talk about that all the time here.

Yes, she is a sympathetic character. Yes, the other guy is anything but sympathetic. Yes, she came out of it unhurt, and most probably legally OK.

But there are a number of things she did that she could have done a lot better.
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Old November 21, 2012, 12:49 PM   #149
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We cannot tell whether a present threat of unlawful force existed.
I think we can. We had a lone female with child in tow and the perv starts acting aggressive and pawing himself. Do we not believe the lady?

Now if it was a man then you may be right. As it was, there was a disparity of force with aggression involved.
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Old November 21, 2012, 12:53 PM   #150
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So a guy goes up to a strange woman and flashes. I'd say he may be capable of anything. All bets are off the table as far as I am concerned. How would you like if if that woman was your wife, mother, sister? She did the right thing. Why should an INNOCENT woman have to grant any leeway to a possible male attacker?
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