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Old October 18, 2021, 03:00 PM   #76
Metal god
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I think you are mixing together two things the law generally considers separate. Self defense, and the use of deadly force in self defense. And also the difference between moral and legal justification.

If you start the fight, initiate the attack, throw the first punch, then you forfeit the legal right to claim self defense. Now, if things go against you and you have a valid fear for your life, you have the moral right to do what you have to do to survive.

the law does not require you to die, but it does require you to pay the penalty for illegal actions. And, generally speaking starting the fight involves an illegal action, and therefore your legal protection for acts deriving from that is limited. Its the way the law is. Might not be what you feel is right, but its the way the law is.
Well said and I agree completely and has been my point . So you are justified in surviving and will have to pay a price for that survival . Now comes in the charges , is that 2nd degree murder ? I say no or the standard would be knowing any altercation may lead you to kill someone and I can't get there in a basic fight if there is such a thing . A reasonable person does not think any altercation will lead to someone dyeing . Why would there be a right to keep and bear arms if the outcome is most certainly going to be someone dyeing . A reasonable person should know there is that possibility if they discharge there weapon in the direction of another person .

Hmm as I write other posters make more sense , maybe that's why it's always illegal to kill a human and only can be justified by a jury of your piers or the DA I guess .
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Old October 18, 2021, 04:46 PM   #77
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maybe that's why it's always illegal to kill a human and only can be justified by a jury of your piers or the DA I guess .
You're close but still not quite spot on. It's a multi-stage process with defined roles after a shooting.

The police investigate, and give their findings to the DA. They can recommend a course of action, but that recommendation has no legal weight. It is the DA who makes the decision to prosecute, or not.

Many, (I'd like to think most) will look at the evidence, and decide if there is a case for prosecution, and if they think they can win it, proceed with charges leading to arrest and trial. At that point it becomes the province of the court and the jury of your peers decision to render.

In most cases where charges don't get filed, its because the DA recognizes it a "good shoot" (within the law in all aspects) and there is nothing to use to build a case otherwise. When the investigation results are less than clear cut, the DA may, or may not take it to trial. Its their decision at that point.

HOWEVER, there ARE DA's who have a policy of taking every self defense case to trial, no matter what the investigation results indicate. When one of those people is the DA, even "good shoots" wind up in court. Which is of course, a waste of the court's time and taxpayer money, but often the DA cares less about that than about "sending a message"...
(personally I always felt that prosecuting someone to "send a message" is one of the more boneheaded things a DA can do. Actual criminals won't get the message and lawful folk don't need to hear it.)

So, if the cops and the DA are smart enough to recognize an obvious "good shoot", and are not driven by any personal agenda, its unlikely to go to court. But if things are not crystal clear, or if there is some level of personal agenda involved it often will go to court, and once there, it becomes the jury's decision if it was justified, or not.

Killing another person is always some level of crime. To claim self defense, one must admit to doing it, but having no other choice. At that point the court decides if your justification is valid and if so, you are not convicted of the crime. They don't say "there was no crime" they say "you are not criminally responsible" or words to that effect.

or, at least that's the way I understand it's supposed to work.
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Old October 18, 2021, 05:51 PM   #78
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Originally Posted by Metal god
Ok just so I understand you , it's your belief if a person starts a fight they for fit the ability to defend them selves ?
It is my belief that under the law if a person starts a fist fight that person then forfeits the right to use lethal force to end the fight and then claim self-defense.

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At what point is instigating the fight an instigation ?
Your example was to walk up to someone and punch them in the face. Now you want to argue that that isn't "instigating" a fight? Under the laws of most (if not all) states that's either aggravated assault or assault and battery, and I would probably be legally justified in pulling a gun and shooting you on the spot for such an unprovoked assault.

But you want to turn it around so that if I -- the victim of the initial assault -- choose to defend myself with martial arts rather than simply shoot you, if I [the victim] am prevailing in the physical combat that YOU initiated, you should have a legal right to shoot and kill me and walk away Scott free?

I don't think the law sees it that way.

We're not talking about "mutual combat" here. Mutual combat is when two guys in a bar get into a verbal altercation, and they agree to step outside and settle it "like men." The laws of most (if not all) states are clear that if the loser in a mutual combat then escalates to using lethal force, he canNOT then claim self-defense. So if self-defense cannot be claimed in a case of mutual combat (where both participants agreed to duke it out), IMHO ther's no way self-defense applies in a case where you are the assailant and I am the victim. If you punch me in the face and I defend myself, that's not mutual combat. I didn't agree to fight you -- you attacked me and I'm defending myself.
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Old October 18, 2021, 07:34 PM   #79
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But you want to turn it around so that if I -- the victim of the initial assault -- choose to defend myself with martial arts rather than simply shoot you, if I [the victim] am prevailing in the physical combat that YOU initiated, you should have a legal right to shoot and kill me and walk away Scott free?
Yes but really no and I think this is where all the confusion is in this debate . It's not that "I the instigator" now get to kill anyone . It's do I have a right not to die and prevent that with any means I have available ? I think the proper word would be to incapacitate the now aggressor . Nobody is looking to "kill" only to survive . How about this , as long as he doesn't die and just ends up with great bodily injury is it ok if I live lol ?
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Old October 18, 2021, 07:54 PM   #80
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Originally Posted by Metal god
It's not that "I the instigator" now get to kill anyone . It's do I have a right not to die and prevent that with any means I have available ? I think the proper word would be to incapacitate the now aggressor .
Why would the law afford you the right to incapacitate your assault victim during your assault?
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Old October 18, 2021, 08:26 PM   #81
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Originally Posted by Metal god
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But you want to turn it around so that if I -- the victim of the initial assault -- choose to defend myself with martial arts rather than simply shoot you, if I [the victim] am prevailing in the physical combat that YOU initiated, you should have a legal right to shoot and kill me and walk away Scott free?
Yes but really no and I think this is where all the confusion is in this debate . It's not that "I the instigator" now get to kill anyone . It's do I have a right not to die and prevent that with any means I have available ? I think the proper word would be to incapacitate the now aggressor . Nobody is looking to "kill" only to survive . How about this , as long as he doesn't die and just ends up with great bodily injury is it ok if I live lol ?
You don't get to wave a magic wand and make your victim into an aggressor. YOU attacked him -- he is defending himself.

The degree of force is supposed to be proportionate to the threat. Remember, YOU initiated the assault. The other guy is engaging in self-defense. The amount of force he can use should be proportionate to the degree of threat you still pose. If you are conscious and still fighting, he is (IMHO) justified in continuing to pound on you. Once you are unconscious and no longer a threat, he should end his defense.

If he continues to pound on you after you can no longer respond, then he may be guilty of use of unreasonable force. If you die, he may be guilty of manslaughter. But you started the incident by attacking him. The fact that you chose your victim poorly doesn't give you a free pass to shoot him.

The best way to avoid getting pounded (or shot) is to not walk up to people and punch them in the face.

I'm a senior citizen. I have a surgically-repaired heart, an artificial hip, two bad knees and a variety of other medical conditions. Any physical attack on my person has a very real possibility of causing me severe physical injury or (more likely) killing me outright. Since I know that, any physical attack on my person would automatically put me in fear of imminent death or serious bodily injury. And that is all the justification I need to just shoot you if you punch me in the face. I don't have to fight you "man-to-man." I didn't ask to be punched. It's not mutual combat. You assaulted me, you put me in fear of death or serious bodily harm. That makes me legally justified to use lethal force to defend myself.
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Old October 18, 2021, 08:28 PM   #82
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THIS contains some of the clearest explanations of the "conditional' use of [deadly] force.

Virginia maybe.
But still clear
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Old October 18, 2021, 09:48 PM   #83
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That’s a good link mehavey posted and tracks with my thinking . I figured there was a way to legally defend one self even if being the instigator. Interesting how they expect you to retreat and give up in some noticeable way before re-engaging .
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Old October 19, 2021, 01:49 AM   #84
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I figured there was a way to legally defend one self even if being the instigator. Interesting how they expect you to retreat and give up in some noticeable way before re-engaging .
They don't allow you to retreat and then "re-engage." They allow you to disengage and express that you are done with the engagement, and then attempt to depart. If your former victim then wants to continue the fight after you have disengaged, then you are allowed to defend yourself.
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Old October 19, 2021, 10:00 AM   #85
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they don't allow you to retreat and then "re-engage." They allow you to disengage and express that you are done with the engagement, and then attempt to depart. If your former victim then wants to continue the fight after you have disengaged, then you are allowed to defend yourself.
Haha that sure seems like a distinction without much of a difference but point taken .
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Old October 19, 2021, 11:00 AM   #86
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Haha that sure seems like a distinction without much of a difference but point taken .
The difference is that you aren't entitled to use force in commission of an assault.

Where you have completed your assault and disengaged, you are no longer in the midst of your assault. If your victim found you the next day watching the television in your living room and beat you, his use of force wouldn't be an example of defense. It would be a different assault.

"Instigator" is a label of limited use if it is just an identity in an example. The actions of those involved are central to whether an act is self-defense.
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Old October 19, 2021, 12:12 PM   #87
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Where you have completed your assault and disengaged, you are no longer in the midst of your assault. If your victim found you the next day watching the television in your living room and beat you, his use of force wouldn't be an example of defense. It would be a different assault.
No , that link was pretty clear , they are talking the same incident not days or hours later .

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Originally Posted by From link above titled This
If the defendant is "even slightly at fault" in contributing to the assault, the use of self defense is not justifiable (but may be excusable, see below).17

Excusable self-defense

In some circumstances a defendant may be justified in using deadly force even though he is not an entirely innocent party, but certain requirements must be met.

The court in Bailey stated: "Excusable homicide in self-defense occurs where the accused, although in some fault in the first instance in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for peace, and kills his adversary from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm."18

An aggressor may be defined as one whose "affirmative unlawful act is reasonably calculated to produce an affray foreboding injurious or fatal consequences."

This follows Virginia's general rule that if you were at fault or had provoked the aggressor, you are required to retreat as far as safely possible before using deadly force.19

The aggressor may use force in self defense only after having totally abandoned the original attack.20
Granted this is one states interpretation but they do sight a case . I bet many states have similar language in there statute/s
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Old October 19, 2021, 01:13 PM   #88
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Forget about who started what--the only thing that matters is who escalated to tipping point of using deadly force--and was it justified under the circumstances. I'd be especially leery of proclaiming "pre-justified" homicide.
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Old October 19, 2021, 07:40 PM   #89
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I'd be especially leery of proclaiming "pre-justified" homicide.
Who claimed that any homicide is/was "pre-justified"?
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Old October 19, 2021, 09:04 PM   #90
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Originally Posted by Metal god
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Where you have completed your assault and disengaged, you are no longer in the midst of your assault. If your victim found you the next day watching the television in your living room and beat you, his use of force wouldn't be an example of defense. It would be a different assault.
No , that link was pretty clear , they are talking the same incident not days or hours later .
You've conflated acting beyond one's rights within a specific incident and later using force in a different incident.

The amount of time that elapses isn't what determines whether it is analytically the same "incident". Making the example the next day while you are sitting at home watching the TV was to make clear that where you complete your effort at assault and disengage, your assault has ceased and the incident is over.

Your victim finding you after that incident is over means that his use of force was not self-defense, but a discreet assault. Whether 10 minutes or ten days later, a subsequent retribution for a past attack isn't self-defense. That he was your victim ten minutes ago or ten days ago isn't an identity he carries beyond the incident, but a role within that incident. In the beating you took in your living room, you, the prior instigator, were the victim.
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Old October 19, 2021, 10:05 PM   #91
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You've conflated acting beyond one's rights within a specific incident and later using force in a different incident.
Wait a second now I'm really confused , I thought that's what you did with the next day analogy .
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Old October 20, 2021, 01:33 AM   #92
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It's not how long there is between the incidents, it's whether or not the law sees them as being distinct.

Generally speaking, if a person disengages and genuinely tries to escape and is prevented from doing so or is pursued and attacked, then that will likely be viewed as a separate incident and the pursuer/attacker will be the aggressor/offender in that incident, regardless of how the initial incident started or who was the offender in that incident.

For example, Bob tries to kill Frank. They fight and Frank gains the upper hand after about 10 seconds. Bob now breaks away and runs. Frank chases him down and catches him a couple of seconds later and begins beating him.

The fact that Bob tried to kill Frank gave Frank justification for defending himself with as much force as was necessary to stop the attack. But once Bob broke off the attack and ran, Frank no longer needs to defend himself. That incident is over and there's no lasting justification for Frank to use force against Bob.

The key here is that justifiable use of force/deadly force is about prevention. It's not justified for revenge or punishment (those are things that happen after the fact and after the fact justification no longer exists) it's about stopping an attack in progress or one that is imminent (those are things that are happening or are about to happen).

Once Bob runs, there's no longer any need for prevention. The attack is over, there's nothing to prevent.

But Frank chose to pursue Bob and attack him. The law will very likely see that pursuit and attack as a separate incident even though it happened only a few seconds after Bob's initial attack on Frank. Because Bob genuinely tried to get away, the first incident ended at that point. The second incident consists of Frank pursuing and attacking Bob.

On the other hand, if the fight continues more or less without interruption, as long as Bob is still engaged, Frank can continue to do whatever it takes to prevent Bob from killing him. Even if the attack goes on for a long time, as long as Bob is actively and potentially effectively trying to harm Frank, Frank can keep fighting back. The fight could go on for 10 minutes and Frank could still have legal justification for defending himself with deadly force because Bob is still pressing the attack.

One concept that people seem to have difficulty with is the "Myth of the Good Guy." This is the same thing as "The Myth of the Bad Guy."

The Myth of the Good Guy is the idea that in a situation there must be a good guy. The good guy is intrinsically good and you can tell just by looking. Once the good guy is identified, you're done. You don't really need to do any more analysis because the good guy is, of course, in the right.

The Myth of the Bad Guy is just the other side of the coin. In a situation there must be a bad guy. The bad guy is intrinsically bad and you can tell just by looking. Once the bad guy is identified, you're done. You don't really need to do any more analysis because the bad guy is obviously in the wrong.

These are myths--they are false.

The fact is that the circumstances of the situation determine who's in the right and who's in the wrong. Not something intrinsic about the people involved. Not something that's immediately obvious by looking at the participants.

Since circumstances can change, that means a person can start off as the offender--as a criminal but could, before everything is over and done become the victim as circumstances change. Or a defender can start off with perfect justification and then as the circumstances of the situation change, end up as an attacker--a murderer.

It's important to understand this fact. Just because you start off a situation as the good guy, as the victim, doesn't mean you keep that status indefinitely. You can overstep your justification and become the bad guy, become a criminal. We saw this happen in the Jerome Ersland shooting where he justifiably shot a criminal who attempted an armed robbery at his pharmacy but then reloaded his gun and executed the robber as he lay helpless on the floor. He started off as the good guy, the victim, but then became the bad guy--a murderer.

Even though the two incidents happened with only seconds separating them, the law viewed them as very different. In one, Ersland was the victim, legally defending his life against a deadly threat. In the second one, Ersland was a murderer. He still looked the same, he was still the same person, but the circumstances were different in the second incident and that changed everything.

In the same way, the robber started out as the attacker--an armed felon, but ended up as a victim when circumstances changed.
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Old October 20, 2021, 02:27 AM   #93
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Johnska, Post #92 ; Excellent, understandable explanation.

Regarding Rittenhouse: While I have the same incomplete ,imperfect news /youtube info everyone else does,and I'm not a legal expert

It seems to me KR was doing his best to disengage and leave,and its seems people were pursuing with intent to harm him.

More detail will be studied in the trial. There will be a verdict.

He is presumed innocent till proven guilty. I do not pretend to have the knowledge to say what the verdict will or should be. Time will tell.

To refer to Kyle Rittenhouse as a murderer at this point is a cheap shot offered in ignorance or disregard of due process.

Its my opinion when ANTIFA types turn into a hyena pack ,pursue and beat down anyone,but particularly elderly people,they have crossed the line.
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Old October 20, 2021, 10:37 AM   #94
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Thanks John , Although in my head it would be the same incident , I clearly see how a court would see it as two separate incidents . Maybe it's two separate incidents with in the same altercation kinda like two separate incidents with in the same robbery or is that another distinction without a difference ?
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Old October 20, 2021, 11:27 AM   #95
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Thank you ,Johnska, for taking the time to clarify issues that are critically important to anyone who may have to defend themselves, armed or not.

A person with any Wisdom or Rational Common sense can educate themselves to be prepared for Life.

We may carry a sense of "justice" that seems "fair" that has no merit in a courtroom.

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Old October 20, 2021, 11:45 AM   #96
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To refer to Kyle Rittenhouse as a murderer at this point is a cheap shot offered in ignorance or disregard of due process.
No it's not--it's pure speculation through the lens of personal interpretation/bias. My personal opinion--as I said before, that's all it is--is that the kid chose freely and willfully of his own volition to illegally be present in a known volatile situation with the intent to execute vigilante actions. Everything else that followed downstream of that was a direct result of that choice--in my opinion. But we are still, to some degree, a nation of laws and the right for judgement by a presumably impartial jury remains to make the determination. Despite the admonition to avoid politics in this discussion--it has clearly entered into it at least tangentially in some of the remarks.
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Old October 20, 2021, 01:09 PM   #97
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While everyone is entitled to their own personal opinion, when that opinion assumes facts not in evidence, it actually undercuts the argument.


.The trial is set for early November, I suggest we cool our jets until then.
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Old October 20, 2021, 02:07 PM   #98
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While everyone is entitled to their own personal opinion, when that opinion assumes facts not in evidence, it actually undercuts the argument.
We live in the golden age of "alt-facts" and "the truth is what I say it is" due in large part to the pervasiveness of mass social media. To wit--I have never used the word "fact" in any of my comments on this thread.
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Old October 20, 2021, 04:17 PM   #99
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Maybe it's two separate incidents with in the same altercation kinda like two separate incidents with in the same robbery or is that another distinction without a difference ?
I think if it's still the "same altercation" then that would be a problem. There needs to be something that the law would view as an "official end" to the first altercation and an "official start" to the second one. Disengaging and running could be seen as an "official end" to the first incident. Pursuing and attacking could be seen as an "official start" to the second incident.

Similarly, if it's all in the "same robbery" that's just one incident. In Ersland's case, he stopped the robbery by shooting one robber and chasing the other away. Then after the robbery was over, he reloaded and went over and executed the guy on the floor. The robbery was clearly over--there was an "official end" because the robbers were either gone or neutralized and the murder was a second incident with an clear "official start".
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Old October 20, 2021, 07:58 PM   #100
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>
> The attempted robbery took place in May 2009 at the Discount
> Reliable Pharmacy.
>
> A dramatic surveillance video shows Antwun Parker running into
> the pharmacy with one of his two accomplices and pointing a gun
> at Ersland.
>
> Ersland, 59, then shot Parker in the head with a pistol, knocking
> him unconscious. After chasing the other two men out of
> the store, Ersland shot Parker five more times with a different
> gun.
>
> The Medical Examiner's office said that it was these five shots into
> the unconscious teenager's abdomen that killed him.
>
> Box told ABC News that his client saw Parker still moving and
> believed he was still a threat.
https://www.youtube.com/watch?v=YHshsgpsxFg

I don't think ANYone would equate the Rittenhouse situation w/ that of Ersland. Nor would anyone say the first & second Ersland shootings weren't separate events.

(I think)
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