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Old July 25, 2014, 09:38 PM   #51
Fugit1ve Wizard
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Sounds to me like a justified shoot. Two physically capable beings decided to bet their lives on criminal activity a few times too many. Wonder what any of the combat veterans I know would do if you broke into their house? (pregnant or not.) Or gee, maybe we should talk about how this man was jumped by two people in his own home. At the point he was beaten into submission, I imagine he had a realistic view of what was happening as he grabbed that gun, and I'm glad he had it.
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Old July 25, 2014, 10:25 PM   #52
mete
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Autopsy shows NO Pregnancy !

http://www.dailymail.co.uk/news/arti...abys-life.html

Never believe a criminal who wants you to react in his/her favor !!
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Old July 25, 2014, 11:50 PM   #53
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The pregnancy (or lack thereof) is completely irrelevant except that had she actually been pregnant and he were to be found guilty of murder, it might have been possible to charge him with two counts.

If a person is truly a threat then whether that person is pregnant or not is not relevant.

The media is going to focus on that aspect because it's sensational but it's not really cogent to the basic discussion of whether or not the shoot was justified.
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Old July 26, 2014, 09:43 AM   #54
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I reas where an autopsy was performed & the dead criminal wasn't pregnant.
Her criminal accomplice was charged with muder among other things.
This leaves open a question. Can the old man shooter now be charged under Kali law with any lesser homcide offense, as mansluaghter?
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Old July 26, 2014, 01:45 PM   #55
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Her criminal accomplice was charged with muder among other things.
This leaves open a question. Can the old man shooter now be charged under Kali law with any lesser homcide offense, as mansluaghter?
Yes.

Her accomplice was charged with felony-murder--his criminal act resulted in her death.
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Old July 26, 2014, 01:55 PM   #56
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Several points:

1. Don't ever give statements prior to talking to a lawyer or without some training and tactical strategy. You're every word is scritinized and you're hyped up on adrenaline. One stupid comment can be dissected by armchair prosecutors to infinity.
2. Don't shoot someone in the back unless you are sure they are simply maneuvering.
3. The 80 year old had a clean prior record, had been repeatedly burgled, and suffered a broken collar bone from the assault he received after surprising these TWO burglars who broke in to rob him and committed a serious and possibly fatal assault on this venerable man. Let's not forget he was the victim.
4. The entire incident probably occurred in under 60 seconds from the surprise attack, beating, and their flight and him retrieving the gun and the shooting. Put yourself in his shoes. He doesn't have the benefit of knowing how many, if they are regrouping with weapons, getting help from others, or even the extent of his own injuries. In my view, it's a very close call. Someone's back can immediately become someone's front as they produce a weapon.
5. The medical examiner has determined the woman was NOT pregnant. Surprise, she lied.

It is a shame that modern law (driving by liberal anti-gun politics) tries to twist and manipulate things like this to make the homeowner the villain, and the burglars the victims.

So, here's an interesting question. At what point, and who determines, when a deadly encounter is over? Can someone shoot you, and then turn his back, and you can't shoot him back? Someone stabs you with a knife and then puts it in the sheath, and claims to be pregnant, and you aren't allowed to defend yourself from further attack?

As a defense lawyer, I would argue that when outnumbered by adults 50+ years younger than him, and jumped and beaten with near deadly force, these individuals were fair game as they maneuvered for tactical advantage. He may have not had the mental facility or awareness at the time to not continue to fear for his life, fear for another ambush or counter attack, or fear for the man to return with a shotgun from the car. Their 'retreat' did not necessarily end the threat, and they clearly knew how to break into his home, so he did not have sanctuary there. (I have not listened to the whole audio, so perhaps he did make statements that address these points, so this assumes his statements did not address these points...).

While he didn't handle this in a textbook manner, I do not believe this warrants any criminal charges against the home owner. I think that deference should be given to the 80 year old homeowner victim.
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Old July 26, 2014, 02:00 PM   #57
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So, here's an interesting question. At what point, and who determines, when a deadly encounter is over? Can someone shoot you, and then turn his back, and you can't shoot him back? Someone stabs you with a knife and then puts it in the sheath, and claims to be pregnant, and you aren't allowed to defend yourself from further attack?
The police and justice system, and that's how it should be.
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Old July 26, 2014, 02:09 PM   #58
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Quote:
Posted by leadcounsel: At what point, and who determines, when a deadly encounter is over?
How about when the burglars have fled the house through the garage and are running down the alley?

The defender has the obligation to determine that. Now someone else will decide, based on the totality of the evidence, whether his determination had been reasonable, based upon what he knew at the time..

Quote:
Their 'retreat' did not necessarily end the threat, and they clearly knew how to break into his home, so he did not have sanctuary there.
If they were running away, the immediate threat had ceased to exist.

And one cannot use deadly force simply to address the possibility of someone's return.

The suspect's having run after them will undoubtedly damage his case and could conceivably be used as evidence of premeditation.
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Old July 26, 2014, 02:36 PM   #59
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if someone were lucky eoungh to shoot me beofre I shot them and turned their back on me in my house I'd ventalate them.
They are still a threat while armed in my home.
I'm not chasing anyone down an alley and open fire.
That's stupid.
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Old July 26, 2014, 03:59 PM   #60
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The suspect's having run after them will undoubtedly damage his case and could conceivably be used as evidence of premeditation.
Indeed. Premeditation can occur in an instant. From the excepts of the interview, it sounded like he shot to kill, not in defense. His statements are quite harmful.

However, consider again that he didn't premeditate being robbed, jumped and beaten badly by two people, to the point of a broken collar bone. Sure, he apparently was able to break from them to get his handgun, and pursue.

The further he pursued, the worse his defense surely is. A few steps is different than 50 yards.

One of the key pieces will be whether contact was in fact established and whether he was in defense out of fear mode, or whether he was in revenge killing mode. From the sounds of it, it may have been the latter.
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Old July 26, 2014, 05:28 PM   #61
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At what point, and who determines, when a deadly encounter is over? Can someone shoot you, and then turn his back, and you can't shoot him back?
You are NEVER allowed to "shoot someone back". That implies retaliation or vengeance and that is not a valid justification for the use of deadly force.

Deadly force is for PREVENTING or STOPPING an attack, it is not for punishment, vengeance or retaliation.

If the person shoots and flees, then the attack is over and the justification for the use of deadly force is over too.

If they shoot and then run/maneuver to cover to better their position and to put you at a further disadvantage, you would be justified in shooting to dissuade/prevent them from continuing their attack.
Quote:
Someone stabs you with a knife and then puts it in the sheath, and claims to be pregnant, and you aren't allowed to defend yourself from further attack?
The claim of pregnancy is totally irrelevant. If a person is a threat then their being pregnant doesn't change that.

The question is worded in a quasi-contradictory manner. It makes it sound like the attack has ended because the person has stopped attempting to harm you but then asks about the legality of defense. If the person has stopped attacking then you have no need to defend yourself and therefore, of course, you aren't allowed to defend yourself with deadly force.

If a person stabs you and then immediately stops attacking, you are not justified in using deadly force. Since the attack is over, there's no justification for the use of deadly force.

However, if a reasonable person in your situation would feel that the person still posed a deadly threat and still intended to do you harm (after you passed out or were sufficiently weakened from blood loss, for example), and there was no other way to deal with that deadly threat other than using deadly force, then using deadly force would be justified.
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Old July 26, 2014, 06:04 PM   #62
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I fear for the old man,,,

I fear for the old man,,,
I believe they will prosecute him.

They will all be shedding great big crocodile tears,,,
But I am afraid that he will be used as an example of blind justice.

<RANT>

Our society claims to be enlightened and justice oriented,,,
But at what point does a violent criminal give up all rights under the law.

At what point does an innocent victim of an invasion/assault,,,
Have absolute immunity from anything that happens to the assailant.

How ridiculous on the surface is the idea,,,
That an assailant can cry "uncle",,,
And expect his victim to stop.

How lazy and uncompassionate a justice system,,,
That expects a victim in the heat of a personal attack,,,
To make the fine distinctions of when the threat is over or not.

</RANT>

But that's the type of society we live in.

~~~hanging head in despair~~~

So what lesson do we take from this sad event?

After any self defense incident,,,
Do not talk to anyone,,,
Except your lawyer.

Aarond

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Old July 26, 2014, 06:09 PM   #63
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I fear for the old man,,,
I believe they will prosecute him.

They will all be shedding great big crocodile tears,,,
But I am afraid that he will be used as an example of blind justice.
Do you think that anyone that shoots someone and then claims self defense should not be investigated and charged if necessary. ? I know I would not want to live in a country that the police turned a blind eye to such incidents. People should be careful what they wish for.

Quote:
At what point does an innocent victim of an invasion/assault,,,
Have absolute immunity from anything that happens to the assailant.
They should never have absolute immunity.

Quote:
After any self defense incident,,,
Do not talk to anyone,,,
Except your lawyer.
What I would take from it is you are going to shoot someone make sure you can justify it, and don't shoot them in the back when they are running away.
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Old July 26, 2014, 06:21 PM   #64
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Hello manta49,,,

I never said what you are implying.

There is no question (after the initial police response) that the man was assaulted.

I said and mean that in a saner society than the one we live in now,,,
There would be a point that violent attackers cross,,,
That gives a victim carte blanche immunity.

They should not be able to cry "time out",,,
I do wish for that type of reasoning.

A victim of a violent assault should not be held to a set of standards,,,
That prove difficult for people under normal situations to define.

That really is the place where I want to live,,,
I'm tired of criminals having more rights than their victims.

Aarond

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Old July 26, 2014, 06:41 PM   #65
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Quote:
I said and mean that in a saner society than the one we live in now,,,
There would be a point that violent attackers cross,,,
That gives a victim carte blanche immunity.
The police have to investigate and then its up to the prosecutors to prosecute or not. All the things you talk about should be taken into account before a decision is taken. You can't have a situation just because someone was in the wrong stealing from someone for example that its OK to shoot them in the back when they are running away. Everyone should have equal rights under the law even the ones that break it. If he had shot them when they were attacking him and he was in fear for his life we would not be having this discussion. For example in the UK if you find someone in your house and you kill them , even if its clear that in the heat of the moment that you overacted you will be investigated but it would be unlikely that you would be charged. Chase them out of the house and kill them you will be prosecuted, it went from self defence to vengeance .

Quote:
UK someone who is confronted by a burglar and has reason to fear for their safety, or the safety of their family, and in the heat of the moment uses force that is reasonable in the circumstances but in the cold light of day seems disproportionate they will not be guilty of an offence".

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Old July 26, 2014, 08:01 PM   #66
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You can't have a situation just because someone was in the wrong stealing from someone for example that its OK to shoot them in the back when they are running away.
That's generally correct although there are some very limited situations in TX where it is legal (although HIGHLY inadvisable) to shoot someone escaping with stolen property.
Quote:
I said and mean that in a saner society than the one we live in now,,,
There would be a point that violent attackers cross,,,
That gives a victim carte blanche immunity.
It's possible to search old versions of the Texas statutes online, and on one occasion I was curious about the origins and evolution of the current laws, particularly those relating to the defense/recovery of property.

Here are two interesting excerpts from the 1879 version of the TX Penal code regarding justifiable homicide.

Please note that the quote below is NOT from current TX law.

If homicide takes place in preventing a robbery, it shall be justifiable if done while the robber is in the presence of the person robbed, or is flying with the money or other article taken by him.
...
In cases of burglary and theft by night, the homicide is justifiable at any time while the offender is in the building, or at the place where the theft is committed, or is within reach of gunshot from such place or building.
So in the 1879 version of the TX Penal Code, one was allowed to use deadly force to recover property lost as a result of burglary or theft at nighttime or as the result of an armed robbery as long as the deadly force was used in relatively close proximity to the place where the crime took place. Because the crime is still in progress (person is fleeing with stolen property) deadly force was still justified.

One might look at that law and assume that the same kind of proximity clause applied to defense of person during that timeframe. Not so. Because, in the case of a crime against the person, the crime is already committed and completed when the criminal flees, there was no justification for use of deadly force once the criminal fled. There was one interesting exception.

Please note that the quote below is NOT from current TX law.

Homicide is permitted in the necessary defense of person ... under the circumstances and subject to the rules herein set forth.
...

The killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense.

It must take place before the offense committed by the party killed is actually completed; except that, in case of rape, the ravisher may be killed at any time before he has escaped from the presence of his victim...
Apparently, in 1879, it was felt that a rapist could be killed even after the offense was complete as long as the rapist was still in the presence of his victim. I suppose that would equate to your comment about a threshold that, once crossed gave the victim carte blanche. It should be noted that even in this situation the victim didn't really have true carte blanche since once the rapist left the victim's presence the justification disappeared.

However, even during that timeframe (135 years ago) it's clear that in the cases of other offenses against the person, once the crime was completed the justification for justifiable homicide no longer existed.

Although the specifics are different in the current TX law, the gist is still fairly similar. If the crime is over, so is the justification for deadly force.
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Old July 26, 2014, 08:10 PM   #67
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Quote:
Posted by aarondhgraham: But at what point does a violent criminal give up all rights under the law.
Surely you are aware that a felon gives up certain rights upon conviction for his crime.

Quote:
At what point does an innocent victim of an invasion/assault,,,
Have absolute immunity from anything that happens to the assailant.
Under certain circumstances, always defined by necessity, a victim may be excused for harming an assailant.

Quote:
How ridiculous on the surface is the idea,,,
That an assailant can cry "uncle",,,
And expect his victim to stop.
Goes back around a millennium as a basic tenet of law.

Quote:
How lazy and uncompassionate a justice system,,,
That expects a victim in the heat of a personal attack,,,
To make the fine distinctions of when the threat is over or not.
The fact of obvious retreat is not a "fine distinction".

Quote:
So what lesson do we take from this sad event?

After any self defense incident,,,
Do not talk to anyone,,,
Except your lawyer.
Well, yeah, but it is very doubtful that that advice would have helped this jasper much at all.

The forensic evidence is most likely sufficient to nail him.

Perhaps a criminal state of mind would have been herder to prove, but the facts would have been sufficient to prevent a successful defense of justification.
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Old July 27, 2014, 09:20 AM   #68
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It absolutely is a fine distinction,,,

Quote:
The fact of obvious retreat is not a "fine distinction".
It absolutely is a fine distinction,,,

Especially in the heat of the moment,,,
When a person is in the middle of being assaulted,,,
How can he or she be expected to care about anything but defense?

Victims are thrust into a situation of violence,,,
They do not ask to be victimized by violent assault,,,
So why does our society expect them to act rationally in that scenario.

I know what the law says,,,
But the law errs on the side of the criminals rights.

Just a few years ago I read a story about a man who was attacked,,,
The assailant knocked the man flat on his back,,,
The victim was able to draw is gun and fire.

He was charged with manslaughter,,,
Because he hit the assailant in the back,,,
The assailant saw the gun and turned to flee,,,
But the victim was already pulling the trigger in defense.

How in the heck do we expect people to act that calmly,,,
Our society lets a uniformed officer kill a young teenage boy,,,
Because the kid had an airsoft rifle and the cop "thought" it was real.

No one demanded such a high level of discretion from the officer,,,
And he is supposed to be a highly trained professional.

Why do we even consider demanding a higher level of discretion from a victim.

In 1961 in Oklahoma City a woman woke up in the middle of the night,,,
She heard someone in the living room and thought it might be her son or daughter.

She got her pistol and went to investigate,,,
She encountered a man and immediately shot him dead.

It was enough that the man was an illegal intruder in her home.

No further justification or explanation was necessary.

The shooting was documented and she was not charged with a crime,,,
But in our society now the authorities would be asking her,,,
Did the person threaten or point a weapon at you?

That is the difference I have seen develop in my 62 year lifetime,,,
All because of a misguided tendency to be more "civilized",,,
Society has given criminals more right than their victims.

I think it's wrong,,,
It's as simple as that.

My thought is that people who enforce/legislate these policies,,,
Have never been the victim of a violent assault.

They wrongly believe they would react calmly and rationally,,,
So they decide our judicial policies on that false basis.

It's as wrong as disarming a populace for "the common good".

Look people, I'm not trying to change anyone's mind,,,
I'm simply stating what my opinion of the current state of affairs is.

Aarond

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Old July 27, 2014, 10:01 AM   #69
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Quote:
Posted by aarondhgraham: Especially in the heat of the moment,,,
When a person is in the middle of being assaulted,,,
How can he or she be expected to care about anything but defense?
He or she is not so expected.

Once the assailant has fled, however, the person is no longer "in the middle of being assaulted."

Quote:
Victims are thrust into a situation of violence,,,
They do not ask to be victimized by violent assault,,,
So why does our society expect them to act rationally in that scenario.
"Our" society? The concepts you are questioning are rooted in the English Common Law, which goes back about a century before Geoffrey Chaucer wrote "The Lawyer's Tale". They go back to the Code of Hammurabi.

Quote:
I know what the law says,,,
But the law errs on the side of the criminals rights.
The mission of the legal system is to determine who is a criminal and who is not. In this case, the question at hand is whether the resident, who chased two other criminals down an alley and shot one of them in the back, is a criminal.

That he had been victimized earlier is largely irrelevant to that question, though it could conceivably serve as a mitigating factor regarding the severity of the criminal charges.

Quote:
How in the heck do we expect people to act that calmly,,,
Our society lets a uniformed officer kill a young teenage boy,,,
Because the kid had an airsoft rifle and the cop "thought" it was real.

No one demanded such a high level of discretion from the officer,,,
And he is supposed to be a highly trained professional.

Why do we even consider demanding a higher level of discretion from a victim.
We do not. Had this civilian in Long Beach shot someone threatening him with a toy gun, he would have received the same benefit of the doubt.

Quote:
In 1961 in Oklahoma City a woman woke up in the middle of the night,,,
She heard someone in the living room and thought it might be her son or daughter.

She got her pistol and went to investigate,,,
She encountered a man and immediately shot him dead.

It was enough that the man was an illegal intruder in her home.

No further justification or explanation was necessary.

The shooting was documented and she was not charged with a crime,,,
But in our society now the authorities would be asking her,,,
Did the person threaten or point a weapon at you?
In what US jurisdiction do you believe that would happen?
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Old July 27, 2014, 10:29 AM   #70
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Quote:
In what US jurisdiction do you believe that would happen?
In any US jurisdiction that does not have a strong castle defense law.

You can cite all of the examples of common law origins that you can find,,,
Knowing the reasons behind a situation does not automatically justify it.

But bottom line is,,,
I believe these justifications are wrong.

I'll not debate you,,,
I've stated my opinions,,,
That's all I am trying to do here.

I think I'll go mow my lawn now.

Aarond

.
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Old July 27, 2014, 10:31 AM   #71
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I said and mean that in a saner society than the one we live in now,,,
There would be a point that violent attackers cross,,,
That gives a victim carte blanche immunity.


No one should ever be given carte blanche immunity.
When a homocide is committed there must be a thorough investigation of the homocide.
No matter the circumstances a homocide has been committed, homocide implies
the death of human. Even in a very righteous shoot a homocide has happened.
It's up its a grand jury to determine if that homocide was justifiable or not.
Jusitifiable does not negate that fact a homocide occured.
A ruling of justifiable homocide does not relieve the actor from civil redress either.
My opinions are based of over 2 decades of real world experience.
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Old July 27, 2014, 10:32 AM   #72
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Quote:
If a person stabs you and then immediately stops attacking, you are not justified in using deadly force. Since the attack is over, there's no justification for the use of deadly force.
Maybe. Maybe they are waiting for you to bleed out and attack you further.

Quote:
Once the assailant has fled, however, the person is no longer "in the middle of being assaulted."
If they have truly fled that is and not running to try to grab another weapon.



Keep in mind there are no absolutes. Every situation has to be taken into the context of which it is and what can be explained to a jury. The less explanations the better. The key point being are you reasonably in fear of your life and the attacker has the means and ways to end it.

In a lot of states even fear of life is not the total litmus. In Alabama for example you can use deadly force to stop an arson or rape among other things.
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Old July 27, 2014, 10:56 AM   #73
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Clarifcation on Post #69

There was a time when the use of deadly force to stop a fleeing felon was excusable. Things have changed.

First, and most important, in the days of Blackstone, all felonies were subject to the death penalty. That is no longer true. The decedent in the Long Beach incident would not have been charged with having committed a capital crime.

Second, in the days of yore, a felon who escaped was as good as gone. Today, he or she will most likely be apprehended. Radio, patrol cars, helicopters, fingerprints, DNA, and surveillance video make escape a dubious proposition.

The decedent's accomplice has been apprehended and charged. And so would she have been, had she not been killed.
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Old July 27, 2014, 11:47 AM   #74
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One of the basic tenets of the justification of the use force by one person against another are that the actor had had a basis for a reasonable belief that:
  • he or she had been faced with an immminent threat of harm--not a possible future threat, or a threat that had ceased to exist, but an imminent threat;
  • he or she had had no reasonable alternative than the use of force; and
  • he or she had used no more force than had been necessary.

Nuances involving a duty to retreat enter into the last of the above.

There are a few others that do not seem relevant to the Long Beach incident:
  • the defender had not instigated the confrontation, or had attempted to withdraw from it;
  • the defender had not agreed to enter into combat; and
  • in the event that the defender had been defending a third person, the defender had at leaast had reason to believe that the third person would have been lawfully justified in using force to defend himself or herself.

There are, in some jurisdictions, some additional and very strict conditions that may, under some very limited circumstances, justify the use of force against a fleeing felon.

A person who knowingly and willfully uses force against another person or persons in the absence of a basis for a reasonable belief that all of the relevant factors existed is, by definition, what the law defines as a criminal. The severity of the criminal charges will vary depending upon the circumstances at hand.

That is true even if the person who uses force is....
  • a sympathetic character;
  • a "nice guy";
  • or a person with a clean record.

It is also true even if the person against whom force had been used is a very unsympathetic character, or one with a very long "rap sheet", or just one who had just been involved in a crime.

We know that there are those who do not agree that the above truly reflects justice. But in reality, we must live by these constructs if we are to have a just society.

Last edited by OldMarksman; July 27, 2014 at 01:36 PM. Reason: A few typos
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Old July 27, 2014, 12:20 PM   #75
Frank Ettin
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Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,700
Quote:
Originally Posted by aarondhgraham
...But bottom line is,,,
I believe these justifications are wrong.

I'll not debate you,,,
I've stated my opinions,,,
That's all I am trying to do here...
But as we've stated many times here, your opinion about how things ought to be doesn't mean anything here. We're trying to help people understand what the laws regarding the use of force are so they can make appropriate, real world decisions.

The bottom line is that under the norms of our society intentional violence is repugnant. The default response to intentional violence is that it is a criminal act. So it becomes a question of when your intentional act of violence against another person can nonetheless be justified as legitimate self defense.

Quote:
Originally Posted by MTT TL
...Keep in mind there are no absolutes. Every situation has to be taken into the context of which it is and what can be explained to a jury. The less explanations the better. The key point being are you reasonably in fear of your life and the attacker has the means and ways to end it...
And you will need to hope that a jury will buy your explanation. It's going to be a much tougher sale if the assailant was fleeing.
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