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Old July 10, 2013, 11:24 AM   #1
SamNavy
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Kill vs. Murder vs. "Rights"

I'm an arts major, please try to read through what I'm actually saying and arrive at what I'm meaning to say.

I've got a thread going on another forum where a buddy is advocating that having the "right to self defense" when combined with "the right to use lethal force" combined with "using a gun", is a defacto "right to kill".

He's using the argument that "right to murder"(illegal) is not the same as "right to kill"(legal).

Him: Using a gun in self defense and having that person die means you legally killed somebody, this is a "right to kill".

Me: Legally using lethal force in self-defense that results in the unintentional consequence of death, is not the same as saying "you have the right to kill".

What is the common or uncommon ground that we're missing here. I'm pretty sure this isn't just semantics... can anybody put some legaleze to my and/or his thoughts.
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Old July 10, 2013, 11:33 AM   #2
OldMarksman
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First, what does using a gun have to do with it?

Second, I know of no jurisdiction in which any citizen has a "right to kill". One may be excused under some circumstances for having used necessary force, up to and sometimes including deadly force, and deadly force may, from time to time, result in death, but that's something a lot difference.
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Old July 10, 2013, 11:36 AM   #3
Spats McGee
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The rights that we have include:
1) A right to keep and bear arms;
2) A right to defend ourselves and others, which defense could entail a use of force up to and including deadly force.

It's not a "right to kill." It's a "right to defend oneself that may result in the death of another." Frank Ettin has done such a fine job in analyzing the basic contours of self-defense law that I'm going to shamelessly copy and paste one of his posts:
Quote:
Originally Posted by Frank Ettin
Let's understand the basic reality of the use of force in self defense.
  1. Our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.

    1. However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.

    2. Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened.

  2. The amount of force an actor my justifiably use in self defense will depend on the level of the threat.

    1. Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --

      1. Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;

      2. Opportunity, i. e., the assailant was capable of immediately deploying such force; and

      3. put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.

    2. "Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."

    3. "Opportunity" could be established by showing proximity, lack of barriers or the like.

    4. "Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.

    5. And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.

  3. If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.

    1. Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.

    2. If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.

    3. Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.

      1. Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?

      2. In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.

      3. It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.

      4. It could also be another matter if you left the safety of your house to confront someone on your property.

  4. Good, general overviews of the topic can be found at UseofForce.us and in this booklet by Marty Hayes at the Armed Citizens' Legal Defense Network.

  5. Sometimes a defensive use of lethal force will have grave consequences for the defender, even when ultimately exonerated. For example --

    • This couple, arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.

    • Larry Hickey, in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.

    • Mark Abshire in Oklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal meat-grinder before finally being acquitted.

    • Harold Fish, also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.

    • Gerald Ung: He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted.

    • Some good folks in clear jeopardy and with no way to preserve their lives except by the use of lethal force against other humans. Yet that happened under circumstances in which their justification for the use of lethal force was not immediately clear. While each was finally exonerated, it came at great emotional and financial cost. And perhaps there but for the grace of God will go one of us.

    • And note also that two of those cases arose in States with a Castle Doctrine/Stand Your Ground law in effect at the time.
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Old July 10, 2013, 11:51 AM   #4
Frank Ettin
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Quote:
Originally Posted by SamNavy
I've got a thread going on another forum where a buddy is advocating that having the "right to self defense" when combined with "the right to use lethal force" combined with "using a gun", is a defacto "right to kill"...
The right to use force in self defense is a right to use appropriate force to stop the wrongful act of another, which act is an imminent threat to your well-being. When that act is such that it creates a reasonable risk to you of death or grave bodily injury, the practical reality is that to preserve your life you must use great force to have a reasonable chance of stopping that threat; and such force used in self defense will of necessity be of a magnitude that it could reasonably cause the death of the person against whom it was used. Lesser force would be more likely to fail to stop your assailant before he kills you, and in fact sometimes even lethal forces used in self defense is insufficient.
  1. Let's look at how the law looks at "homicide", i. e., the killing of one person by another.

    1. "Homicide" is not a crime. Homicide might be a crime, or it might not be a crime.

    2. Homicide is the killing of one person by another. A homicide can be --

      1. Accidental;
      2. Negligent;
      3. The result of reckless (or willful, wanton and reckless) conduct;
      4. Intentional without malice (evil intent);
      5. Intentional with malice; and
      6. Intentional, premeditated and with malice.

    3. An accidental homicide basically would be a death occurring as the unintended result of actions of an actor, even though the actor acted as a reasonable and prudent person in like circumstances. The actor incurs no criminal or civil liability in the case of a truly accidental homicide.

    4. A negligent homicide would be a death occurring as the unintended result of the actions of an actor failing to use the degree of care expected of a reasonable and prudent person in like circumstances. And the actor incurs civil, but not criminal, liability in the case of a negligent homicide.

    5. Homicides [3] - [6] are crimes: involuntary manslaughter, voluntary manslaughter, murder, and first degree murder, respectively.

    6. The various types of homicide are defined in terms of the state of mind/intent/conduct of the actor.

    7. If you point a gun at someone, the gun discharges and the person dies, your conduct gives rise to at least an articulable suspicion that a crime anywhere from involuntary manslaughter (pointing a gun at someone is at least reckless) to murder in the first degree has been committed. If you are claiming that you acted in self defense, you would be at least admitting the elements of voluntary manslaughter, i. e., you intentionally shot the guy.

    8. Self defense, simple negligence or accident is a defense to a criminal charge of involuntary manslaughter, voluntary manslaughter, murder, or first degree murder. Self defense or accident is a defense against a civil claim. It will be up to you to make the case for your defense, e. g., it was an accident, it was mere negligence, it was justified.

  2. Now let's look at the basic legal reality of the use of force in self defense.

    1. Our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.

      1. However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.

      2. Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.

      3. Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.

    2. The amount of force an actor my justifiably use in self defense will depend on the level of the threat.

      1. Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --

        1. Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;

        2. Opportunity, i. e., the assailant was capable of immediately deploying such force; and

        3. put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.

      2. "Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."

      3. "Opportunity" could be established by showing proximity, lack of barriers or the like.

      4. "Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.

      5. And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.

    3. If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.

      1. Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.

      2. If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.

      3. Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.

        1. Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?

        2. In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.

        3. It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.

        4. It could also be another matter if you left the safety of your house to confront someone on your property.

    4. Good, general overviews of the topic can be found at UseofForce.us and in this booklet by Marty Hayes at the Armed Citizens' Legal Defense Network.

  3. It's interesting to note that Roman Catholic doctrine supports self defense. From the Catechism of the Roman Catholic Church(footnotes omitted):
    Quote:
    Legitimate defense

    2263 The legitimate defense of persons and societies is not an exception to the prohibition against the murder of the innocent that constitutes intentional killing. "The act of self-defense can have a double effect: the preservation of one's own life; and the killing of the aggressor. . . . The one is intended, the other is not."...

    2264 Love toward oneself remains a fundamental principle of morality. Therefore it is legitimate to insist on respect for one's own right to life. Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow:
    If a man in self-defense uses more than necessary violence, it will be unlawful: whereas if he repels force with moderation, his defense will be lawful. . . . Nor is it necessary for salvation that a man omit the act of moderate self-defense to avoid killing the other man, since one is bound to take more care of one's own life than of another's....
    2265 Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm. For this reason, those who legitimately hold authority also have the right to use arms to repel aggressors against the civil community entrusted to their responsibility....
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Old July 10, 2013, 11:56 AM   #5
Frank Ettin
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Well it looks like Sam might have gotten more than he bargained for. And Spats and I were busy cross posting.

In any case, I'd say that we have the basic principles out on the table, so now we can sort through, refine and explain them as necessary or desirable.
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Old July 10, 2013, 12:28 PM   #6
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Quote:
Originally Posted by Frank Ettin
From the Catechism of the Roman Catholic Church...
While I understand this kind of reference is strictly forbidden by TFL guidelines, one can't very well discuss the topic without drawing the distinction between the effect of an act and the intent of the individual.

There isn't anything in our recent legal tradition that would permit one person the right to intentionally kill another as a matter of personal right (capital punishment existing as a state act). Our very first idea of a formal general law is of the removal of the right of capital punishment from the individual alone when Draco outlawed blood feuds (family vengeance killings) in favor of government prosecution.

Permitting one to act correctly but in a manner that has the collateral effect of the death of another is very far removed from a right to kill.
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Old July 10, 2013, 12:55 PM   #7
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Spats and Frank covered this one pretty well, but I'll add my $0.02 for good measure.

There is no such thing as a "right to kill", just as there is no such thing as a "right to murder".

Your friend is first wrong in saying that killing an assailant is not murder, because it most certainly is. This fact also makes his entire argument invalid.

If a civilian defends him or herself and this defense leads to the death of the assailant they have one choice if they wish to argue self defense. They must first confess to homicide. They made a decision, and their intent was to harm another person. The action that they chose resulted in the death of another - and that is the definition of homicide in each of the 50 states of the US.

To say it again, the defendant must confess to homicide. Is murder illegal? Yes. However, as Frank and Spats posted, there are justifiable defenses to this. If the defense's argument that is was self defense comes through, then it becomes justifiable homicide.


Let me say it a different way. In order to be found innocent of any criminal wrongdoing (in a self defense murder case), one must first confess to committing a crime.


*I am not a lawyer, this is knowledge that I have gained from my lawyer (who is not your lawyer).

Last edited by allaroundhunter; July 10, 2013 at 01:36 PM.
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Old July 10, 2013, 01:05 PM   #8
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Quote:
To say it again, the defendant must confess to murder.
No.

The defendant must acknowledge having committed homicide; in a self defense case, he or she will present evidence that the act was excusable under the law due to immediate necessity.
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Old July 10, 2013, 01:25 PM   #9
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Quote:
Originally Posted by zukiphile
Quote:
Originally Posted by Frank Ettin
From the Catechism of the Roman Catholic Church...
While I understand this kind of reference is strictly forbidden by TFL guidelines,...
Well just to clarify, the reference I made is not prohibited here. It's one I made many times, even before I joined the staff.

We will not allow discussion of religion. But to point out a particular religious organizations official view of self defense in the context of a discussion of the ethics of the use of force in self defense is not necessarily a discussion of religion.
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Old July 10, 2013, 01:30 PM   #10
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Quote:
Originally Posted by allaroundhunter
...In order to be found innocent of any criminal wrongdoing (in a self defense murder case), one must first confess to committing a crime....
To be technical, you would not be confessing to a crime. You would be confessing to having performed the acts which are the elements of a crime, but you are claiming that the criminal nature of the acts in negated by the justification for the acts. And in any case, you would not be confessing to murder since an element of murder is malice; and you would by claiming self defense be denying malice.
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Old July 10, 2013, 02:09 PM   #11
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Quote:
Originally Posted by Frank Ettin
To be technical, you would not be confessing to a crime.
I don't see anything technical about that distinction because it goes directly to whether the action one admits was any kind of crime at all.

Quote:
Originally Posted by Frank Ettin
Well just to clarify, the reference I made is not prohibited here.
While I appreciate the attempt at clarification, I can assure you that not all staff agree that such a passing reference is tolerable.
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Old July 10, 2013, 02:25 PM   #12
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Quote:
While I appreciate the attempt at clarification, I can assure you that not all staff agree that such a passing reference is tolerable.
Would a reference to Roman Law be "tolerable"? To the Code of Hammurabi? To the Napoleonic Code? To the Code of Ur-Nammu?

How about Mosaic Law and Leviticus, translations of which led to much of the confusion between "thou shalt not murder" and the incorrectly translated "thou shalt not kill"?

How about the English Common Law, which incidentally happens to have been derived, at least to some extent, from all of the above except the Napoleonic Code.

And which, along with the Napoleonic code, formed the original basis of the laws throughout this land?

The reference was made in the context of legal tradition and theory, rather than religion or theology, and it is in my mind therefore perfectly acceptable.
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Old July 10, 2013, 02:29 PM   #13
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Quote:
Originally Posted by OldMarksman
The reference was made in the context of legal tradition and theory, rather than religion or theology, and it is in my mind therefore perfectly acceptable.
I agree.
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Old July 10, 2013, 03:13 PM   #14
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You guys are awesome. The breakdown of different kinds of "homicide" is exactly what I was looking for. It's gonna take some time for me to really digest the longer posts in this thread. I thought I had all this stuff down pretty good, but there's more to think about. My other board thanks you guys as well.
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Old July 10, 2013, 03:56 PM   #15
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Wow. Great posts on here.

There is no "right to kill" but there is a "right to self defense".

One may kill some one in self defense but that does not automatically assume that killing is legal. Florida vs. Zimmerman is a current example.
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Old July 10, 2013, 05:15 PM   #16
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A square is always a rectangle but a rectangle is not always a square.

You have the right to defend yourself and you are expected to do so with the minimum level of force reasonable. If that includes killing someone, you are protected.

However, if you are able to do so without killing them, you typically have a duty to do that first.

There are a lot of issues in deciding what is reasonable. Disparity of force, duty/attempt to retreat, alternatives to lethal force (like if you had pepper spray) etc.
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Old July 10, 2013, 07:02 PM   #17
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And hence the admonishment for using a firearms in self-defense: We do not "shoot to kill," we shoot to stop the attack. Sometimes that is one and the same thing, sometimes it is not. If one shot is enough to stop the attack, you cannot continue firing to kill the fleeing felon.
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Old July 10, 2013, 07:58 PM   #18
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Some good posts here. One nit to pick, though. There has sometimes been the "right to kill" certain persons in times of war/rebellion inside this country. The Civil War is the most obvious example. I do understand this is really outside the scope of the question but sometimes I'm just a contrarian.
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Old July 10, 2013, 09:46 PM   #19
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saying a right to self defense with a gun is a right to kill is like saying you have the option when your life is in danger....
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Old July 11, 2013, 09:09 AM   #20
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In my training I was taught that you shoot to stop not to kill. I was also taught to shoot to center mass, as it is the biggest target that can effect the stop. Killing is not a direct desired result. While we admit that death is a strong possibility, it is not the intent.
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Old July 11, 2013, 09:38 AM   #21
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It is funny, but my grandfather's words are coming back to me. "... five reasons why you put your hands on (use force) on another... one, defense of self... two, defense of innocents (family, community, etc.)... three, defense of nation... four training for one of the first three... and finally, because they asked you to. (The most pleasurable IMHO)
His rather 'common sense' approach fits just about every legal definition I have ever seen. Not too shabby from a guy who only completed the fifth grade. He is sorely missed by me, as are nearly all of his contemporaries, 'The Greatest Generation.'
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Old July 11, 2013, 01:48 PM   #22
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Quote:
Your friend is first wrong in saying that killing an assailant is not murder, because it most certainly is. This fact also makes his entire argument invalid
Here we have a difference of opinion, considering what words mean. And even various states have different opinions about this, as evidenced by the different state's terms for the death of a person.

Killing
Murder
Homicide
Manslaughter

and likely some other terms can be applied as well. States use different terms in their definitions of crimes, and it has been pretty well covered by some of the previous posts. The circumstances and the intent play a huge part in what term is legally applied, and what word should be used in regular conversation, as well. What matters is how we define the terms amongst ourselves, and how the law defines them, as well.

The definitions ought to be the same, but often aren't, especially in casual conversation.

The fact is that when someone dies as a result of the action or inaction of another, the only thing that is consistent is that someone died.

I define murder as killing profit. It can be monetary, or emotional, but it is there before the killing is done. Killing for survival (self defense) is different, to me. (also different to our legal system). A death is still involved, but everything else is different.

The opinion that killing someone is always murder (no matter the additional circumstances) is, I believe, an incorrect use of the word. All our laws, including the rules governing warfare make a distinction between killing, and murder. We should do the same in general conversation.
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Old July 11, 2013, 05:00 PM   #23
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Unfortunately, our "friends" in the media are complicit in spreading the misapprehension that "kill" is the same as "murder." How many times have we seen news articles about the police having to shoot some "young adult" career criminal because he was caught in the act of committing a felony and decided to try to shoot it out with the cops, and the decadent's loving mother is routinely quoted to the effect that, "The police murdered my son. They could have tazed him or used tear gas, they didn't had [ sic ] to murder my son."

Yes, they are quoting a bereaved mother. But the statement is so obviously wrong in most of these cases that I have to wonder why they would print or report a quote like that ... unless, of course, they want us to believe that the police murdered an innocent armed felon, or because they themselves simply don't understand the distinction between "kill" and "murder."
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Old July 12, 2013, 12:02 PM   #24
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Unfortunately, our "friends" in the media are complicit in spreading the misapprehension that "kill" is the same as "murder." How many times have we seen news articles about the police having to shoot some "young adult" career criminal because he was caught in the act of committing a felony and decided to try to shoot it out with the cops, and the decadent's loving mother is routinely quoted to the effect that, "The police murdered my son. They could have tazed him or used tear gas, they didn't had [ sic ] to murder my son."

Yes, they are quoting a bereaved mother. But the statement is so obviously wrong in most of these cases that I have to wonder why they would print or report a quote like that ... unless, of course, they want us to believe that the police murdered an innocent armed felon, or because they themselves simply don't understand the distinction between "kill" and "murder."
Ever miss journalists like Joe Rosenthal? I do.
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Old July 12, 2013, 01:12 PM   #25
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Yellow Journalism is recognized as a significant contributing factor in causing the Spanish American War.

Things have, if anything, gotten worse, since. Our "news" media is driven by, essentially, the profit motive. Anything and everything that increases people's desire to view the news increases their profits. Today, it is all grist for the mill.

Accuracy of description is long gone, and even obvious lies are passed out as gospel truth these days. Even the proper use of basic English is ignored in favor of reporting that increases emotional unrest in the public.

The Zimmerman case is a perfect example of media bias, both in the decisions of what to air (and how it was edited) as well as the focus on everything else but the fact that shooting someone who is pounding your skull into the pavement might be justified...
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