# Man Arrested After Defending Himself Against Armed Teen



## MJS (Nov 30, 2008)

I saw this link on another forum and wanted to post it here for discussion.
http://www.mercurynews.com/ci_11094588

Your thoughts?


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## MJS (Nov 30, 2008)

IMO, after reading this, I hope that the guy doesnt land in jail. It seems as though this was more accidental, rather than an intentional shooting. Now, during the struggle, the guy could have pointed it at the kid and somehow pulled the trigger, but to me it just doesnt seem that way.

Now, the forum that I took this from, the Kajukenbo Cafe, had some interesting replies to this. One in particular comes to mind.
http://www.kajukenbocafe.com/smf/index.php?topic=4714.msg42476#msg42476

IMO, I think those are some valuable points to consider.


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## exile (Nov 30, 2008)

My guess is, this is a routine step that always kicks in whenever there's violence involving a weapon, until an official narrative is approved identifying who is the assailant and who the victim. They will almost certainly toss the arrest record out once it's established that the juvenile brought the gun to the original crime scene, that there was a close-quarters struggle, and that the gun went off in the course of it. What they probably want to do is ascertain that the guy didn't get the gun away from the perp and then fire a couple of rounds at his attacker out of anger, as at least some people might be strongly tempted to do under the circumstances. 

At least, I'd _hope_ it was just a routine step with no lifespan after the initial investigation...

Added in edit: just saw the link to the Kajukenbo site that Mike posted, and yes, Mr. Powell's explanation was exactly the kind of thing I had in mind. The facts really do need to be assessed. Even if we think the attacker was a disgusting piece of vermin, it's also true that the concept of self-defense we have has certain major legal constraints built into it.


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## MJS (Nov 30, 2008)

exile said:


> My guess is, this is a routine step that always kicks in whenever there's violence involving a weapon, until an official narrative is approved identifying who is the assailant and who the victim. They will almost certainly toss the arrest record out once it's established that the juvenile brought the gun to the original crime scene, that there was a close-quarters struggle, and that the gun went off in the course of it. What they probably want to do is ascertain that the guy didn't get the gun away from the perp and then fire a couple of rounds at his attacker out of anger, as at least some people might be strongly tempted to do under the circumstances.
> 
> At least, I'd _hope_ it was just a routine step with no lifespan after the initial investigation...
> 
> Added in edit: just say the link to the Kajukenbo site that Mike posted, and yes, Mr. Powell's explanation was exactly the kind of thing I had in mind. The facts really do need to be assessed. Even if we think the attacker was a disgusting piece of vermin, it's also true that the concept of self-defense we have has certain major legal constraints built into it.


 
Oh I agree.  Obviously any situation is tense, moreso if a weapon comes into play, so yes, the thought of taking it away and using it against the other person, Im sure comes to mind.  Obviously as tempting as it is, its probably not the best option unless the listed things present themselves.

On the other hand, one has to wonder why important things like this are rarely, if ever, taught in a martial arts class.  I mean think about it....when was the last time, in an average class, legal aspects mentioned?  People teach students potentially deadly moves, yet they dont give them the full package.


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## Tez3 (Nov 30, 2008)

It says he was arrested on suspicion of assault which while on the face of it seems harsh but I believe is a correct procedure. The law must be seen to be done and justice must be seen to prevail. If everything happened the way the guy says he will be released with no stain on his character, if he's lying them he'll be charged.
I don't know what your law on arrest is, here arresting someone means only that you suspect them of doing something even if you actually saw them doing it. It gives the police the right to take someone to the police station to be questioned. Depending on the evidence you will then be charged with an offence or 'de arrested'. The police here do not decide whether to charge people, that power lies with the Crown Prosecution Service (representing  the Queen, cases are cited as Regina v ..........). In this case a man shot another which is a crime, whether it is justified or not has to be determined by evidence
The point of investigating someone who claims self defence is that not everyone, obviously, is going to be honest. If it's investigated everytime it will act as a deterrent to someone who plans a murder and then claim self defence. it's common sense.


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## Rich Parsons (Nov 30, 2008)

MJS said:


> I saw this link on another forum and wanted to post it here for discussion.
> http://www.mercurynews.com/ci_11094588
> 
> Your thoughts?


 

15 year old known gang member points gun at man. Man struggles with 15 year old and gun goes off twice. "Friends" of the 15 year old take him to the hospital for surgery, while the man waited for the police and turned over the firearm. 


I think the punk attacked the wrong guy, and he was unlucky while the man was lucky. He waited and did not run. A known gang member could say some random guy shot him, but would the police really believe him? Without biased witnesses, it would be hard to make a case, so I think the man had no intentions and waited for the police to make sure the firearms was in the proper hands. 

Having worked years ago where I had to work with Teens and "Adults", many of the teens thought they were safe from harm as they were not 16 or 18. They had this 'feeling' that no one could touch them. That they could get away with anything. The problem is that they push someone too far and they end up getting hurt bad. 

I hope the man is found to be innocent and it was only self defense.


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## jks9199 (Nov 30, 2008)

That's about how I read it.  They've got a kid who was shot.  They've got the guy who admits that his actions got the kid shot.  (Yeah, I know; the kid's actions against the guy started the whole ball of wax.)  He's arrested for assault or malicious wounding or what have you.  Somewhere between arraignment and the pretrial hearing, the prosecutor will likely assess the circumstances, and assuming they are as reported, the charges will be dropped.

Remember, self defense is a defense of justification against a charge of assault or worse.  It's saying that "yes, I did this... but I had a really good reason!"  It's possible that the police could have gathered the information at the scene, and presented it later to the prosecutor to determine if any charges should be issued, and against whom -- but in that jurisdiction, they may not have had that option for a felony.  Or the police may have had their hands tied because the guy who defended himself may not have sufficient proof of residence, or some other reason that they had questions whether he'd be able to be found if further investigation led to his arrest.


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## Rich Parsons (Nov 30, 2008)

jks9199 said:


> That's about how I read it. They've got a kid who was shot. They've got the guy who admits that his actions got the kid shot. (Yeah, I know; the kid's actions against the guy started the whole ball of wax.) He's arrested for assault or malicious wounding or what have you. Somewhere between arraignment and the pretrial hearing, the prosecutor will likely assess the circumstances, and assuming they are as reported, the charges will be dropped.
> 
> Remember, self defense is a defense of justification against a charge of assault or worse. It's saying that "yes, I did this... but I had a really good reason!" It's possible that the police could have gathered the information at the scene, and presented it later to the prosecutor to determine if any charges should be issued, and against whom -- but in that jurisdiction, they may not have had that option for a felony. Or the police may have had their hands tied because the guy who defended himself may not have sufficient proof of residence, or some other reason that they had questions whether he'd be able to be found if further investigation led to his arrest.


 
There was a gun shooting in Detroit right in front of a police station. Three guys were trying to car jack a car. The guy had his kid in the car. He told the kid to get out and to run while he handed the keys to the bad guys. He shot the first one and before he could point at the second one they were running. Before he could put the firearm away and begin search for his child a plain clothed police man pulled his weapon and pointed it at the shooter and told him to drop it. His weapon still out he turned and said, Identify yourself. The police officer displayed a badge and the man drop his firearm. The police arrested him. Not for the request for ID. The officer had seen the shooting. He understood he shot a man with a gun pointed at him. The legal response to the article was that the police were required to arrest the man. If he was arrested and it was determined that this was a self defense shooting then he would be let go. If he was not arrested the family of the shot person could bring a case in court against him for the shooting. But if arrested and released they could not.


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## MJS (Nov 30, 2008)

Rich Parsons said:


> 15 year old known gang member points gun at man. Man struggles with 15 year old and gun goes off twice. "Friends" of the 15 year old take him to the hospital for surgery, while the man waited for the police and turned over the firearm.
> 
> 
> I think the punk attacked the wrong guy, and he was unlucky while the man was lucky. He waited and did not run. A known gang member could say some random guy shot him, but would the police really believe him? Without biased witnesses, it would be hard to make a case, so I think the man had no intentions and waited for the police to make sure the firearms was in the proper hands.
> ...


 
Hey Rich,

I'm with you 100% on this.  Of course, as another poster in that thread said, I'm sure we'll see this punks court appointed lawyer dress him up like an innocent little schoolboy, who had such a rough life. *rolls eyes*


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## jks9199 (Nov 30, 2008)

Tez3 said:


> It says he was arrested on suspicion of assault which while on the face of it seems harsh but I believe is a correct procedure. The law must be seen to be done and justice must be seen to prevail. If everything happened the way the guy says he will be released with no stain on his character, if he's lying them he'll be charged.
> I don't know what your law on arrest is, here arresting someone means only that you suspect them of doing something even if you actually saw them doing it. It gives the police the right to take someone to the police station to be questioned. Depending on the evidence you will then be charged with an offence or 'de arrested'. The police here do not decide whether to charge people, that power lies with the Crown Prosecution Service (representing  the Queen, cases are cited as Regina v ..........). In this case a man shot another which is a crime, whether it is justified or not has to be determined by evidence
> The point of investigating someone who claims self defence is that not everyone, obviously, is going to be honest. If it's investigated everytime it will act as a deterrent to someone who plans a murder and then claim self defence. it's common sense.


Generally, in the US, "arrest" means taken into police custody based on either a warrant or probable cause (facts & circumstances that would lead a reasonable uninvolved person to believe that the accused more likely than not committed the offense in question) supporting a specific offense.  In many states, there are restrictions on when an officer may arrest a person without a warrant, due to the 4th Amendment of the US Constitution, and similar elements of state constitutions.  In some cases, the accused is released at the scene on a promise to appear on a summons or similar document.  It gets complicated, because each state's laws are unique.  For example, in Virginia, I can only arrest on specific misdemeanors not committed in my presence, or any felony.  On top of that general restriction, I am required to release on summons anyone charged with a misdemeanor (with a few restrictions), unless specific criteria are met.  If it's not a jailable offense, I have very limited reasons to make a custodial arrest.  (Essentially, they've got to be a threat to themselves or other, or I need reason to believe that they are likely to disregard the summons.)  For jailable misdemeanors (with a couple of exceptions), I still must overcome the presumption in the code that they will be released at the scene on their written promise to appear.  Even if I do make a custodial arrest -- often the magistrate will simply issue a summons and release them on their own recognizance for certain misdemeanors.  (If you really want the specifics, Tez, I'll PM you about them.)  Felonies MUST be arrested and taken before a magistrate.  The magistrate then has the option of setting bond, or holding them until arraignment.  (Warrants obtained prior to the arrest may or may not give the option of releasing a misdemeanant on their promise to appear.)  And that's just VA law -- every other state does it a little differently.


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## exile (Nov 30, 2008)

MJS said:


> People teach students potentially deadly moves, yet they dont give them the full package.



Yes, and that is potentially a very explosive issue for the MA scene.

The problem is that if you teach real, effective combat techs to your students, you are teaching a range of things which could have disastrous effects for someone on the receiving end of them, even if justified. Most people, though, do not realize that defending themselves has legal impacts for _them_ as well as the attacker.  'I was _innocent_I was just trying to protect myself', is the basic premise, and yes, my own feeling is, the first law of life is to protect your own lifeno _plausible_ ethical philosophy denies us the right to do thatbut there is still the problem of establishing to society (via the legal process, but that's basically what you're doing) that you were in the right in defending yourself as you did. A damaged windpipe, a neck twist, even a hard shot to the chest, can be permanently disabling, or even lethal. If you train people to do these things, and don't tell them the legal diciness of such actions, you're doing them a major disservice.

But then, how many MA instructors are really up on SD law, apart from instructors who are also LEOs (or attorneys themselves)? Ya can't teach what ya don't know...


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## MJS (Nov 30, 2008)

exile said:


> Yes, and that is potentially a very explosive issue for the MA scene.
> 
> The problem is that if you teach real, effective combat techs to your students, you are teaching a range of things which could have disastrous effects for someone on the receiving end of them, even if justified. Most people, though, do not realize that defending themselves has legal impacts for _them_ as well as the attacker. 'I was _innocent_&#8212;I was just trying to protect myself', is the basic premise, and yes, my own feeling is, the first law of life is to protect your own life&#8212;no _plausible_ ethical philosophy denies us the right to do that&#8212;but there is still the problem of establishing to society (via the legal process, but that's basically what you're doing) that you were in the right in defending yourself as you did. A damaged windpipe, a neck twist, even a hard shot to the chest, can be permanently disabling, or even lethal. If you train people to do these things, and don't tell them the legal diciness of such actions, you're doing them a major disservice.
> 
> But then, how many MA instructors are really up on SD law, apart from instructors who are also LEOs (or attorneys themselves)? Ya can't teach what ya don't know...


 
See, this is why I'm not a fan of teaching 4yr olds, or even a kid who is not yet old enough to really understand the seriousness of what we're teaching, as well as adults who're there for nothing more than to have something to do after work.  Of course, you and I both know that is a fantasy and not the reality.   Those schools that say they have 300 students would have probably 10, if that, if they taught only to a select group, but thats another thread. 

Now, I'll use Kenpo because that is the art I train in.  If we look at any Kenpo tech. we'll see breaks, shots to the eyes, neck, groin..you name it.  A simple lapel grab tech., has an elbow break/dislocation/hyperextension, and a hit to the throat.  All for a simple grab.  Now, I've always said that we need to adapt to whats presented to us at the time, as well as possibly modifying our tech.  So, for that lapel grab, omit the arm shot, but strike down instead to bring them closer, and do a backfist or palm to the face, instead of the hit to the neck.  

So, in the end, we have a good portion of the teachers out there, myself included, that have a limited understanding, at best, of the legal system, teaching.  Good thing I like to show other alternatives to the techs in the system.


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## Tez3 (Nov 30, 2008)

jks9199 said:


> Generally, in the US, "arrest" means taken into police custody based on either a warrant or probable cause (facts & circumstances that would lead a reasonable uninvolved person to believe that the accused more likely than not committed the offense in question) supporting a specific offense. In many states, there are restrictions on when an officer may arrest a person without a warrant, due to the 4th Amendment of the US Constitution, and similar elements of state constitutions. In some cases, the accused is released at the scene on a promise to appear on a summons or similar document. It gets complicated, because each state's laws are unique. For example, in Virginia, I can only arrest on specific misdemeanors not committed in my presence, or any felony. On top of that general restriction, I am required to release on summons anyone charged with a misdemeanor (with a few restrictions), unless specific criteria are met. If it's not a jailable offense, I have very limited reasons to make a custodial arrest. (Essentially, they've got to be a threat to themselves or other, or I need reason to believe that they are likely to disregard the summons.) For jailable misdemeanors (with a couple of exceptions), I still must overcome the presumption in the code that they will be released at the scene on their written promise to appear. Even if I do make a custodial arrest -- often the magistrate will simply issue a summons and release them on their own recognizance for certain misdemeanors. (If you really want the specifics, Tez, I'll PM you about them.) Felonies MUST be arrested and taken before a magistrate. The magistrate then has the option of setting bond, or holding them until arraignment. (Warrants obtained prior to the arrest may or may not give the option of releasing a misdemeanant on their promise to appear.) And that's just VA law -- every other state does it a little differently.


 

It must make training to be a lawyer a complicated business lol! 
Here a police officer can arrest and take into custody with or without a warrent. A person arrested cannot be kept in custody for longer than 24 hours without being charged though it can be extended by a senior officer to 36 and 96 hours by a magistrate (the terrorism laws are different and you can hold them for 7 days)
If there's no enough evidence or the police want to question you again you'll be released on police bail with or without conditions (this doesn't cost anything). If they think you are a flight risk or will intimidate witnesses etc you'll be remanded in custody in prison, time spent there is taken off your sentence if found guilty.
I want to point out that every genuine case in the UK of someone who has claimed they fought back in self defence has been upheld as such and no one has been charged. Most people think you will be charged here if you defend yourself, you will probably be arrested as the man in the OPs post was but once it's investigated there are no charges. People bring up one case in particular where a man shot a kid who broke into his house but he was charged and found guilty because it was premeditated, he wasn't attacked or in fear of his life and he used far more than reasonable force.


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## Deaf Smith (Nov 30, 2008)

If the ex-paratroopers story checks out, and I think it will, the charges will be dropped. Keep in mind he was arrested for "suspicion of assault", not assault, nor agravated assault (using a deadly weapon), or attemtped murder.

This is a case of poor victim selection. I'm sure the little punk thought he was a big man with the gun and could scare anyone into submission. Bad move that one.

Oh, one thing. It said he gave a statement to police and they that arrested him. I hope he gave a brief statement that he was the good guy, the 15 year old punk was the bad guy, showed them the evidence (the gun), and then asked for a lawyer. I hope that is what he did and not blab out a statement that could be taken ten ways and twisted into some kind of admission of guilt.

Deaf


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## MA-Caver (Nov 30, 2008)

Deaf Smith said:


> If the ex-paratroopers story checks out, and I think it will, the charges will be dropped. Keep in mind he was arrested for "suspicion of assault", not assault, nor agravated assault (using a deadly weapon), or attemtped murder.
> 
> This is a case of poor victim selection. I'm sure the little punk thought he was a big man with the gun and could scare anyone into submission. Bad move that one.
> 
> ...


Well it's why (on another thread) we talked about the pros and cons of talking to the police or NOT talking to the police.
Here in this circumstance it was self-defense, and the guy waited around instead of taking off (which would've looked guilty as hell)... like he knew the trouble that he would be getting into because of this un-solicited confrontation. I think talking with the police will work out in his favor. 
I liked how the papers painted the kid as a "gang associate" and not "gang _member_" as to minimize how bad a boy he is/was. Chances are the kid has priors so it'll show up in the course of the investigation and thus the "self-defense" will be more plausible.  
Hope that it turns out alright for him... I've had guns pulled on me and it's no fun and down right scary to be frank about it. Fortunately no major incidents from any of them. But I'd hated to be embroiled in all that legal crap afterwards if there had been.


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## exile (Nov 30, 2008)

MJS said:


> See, this is why I'm not a fan of teaching 4yr olds, or even a kid who is not yet old enough to really understand the seriousness of what we're teaching, as well as adults who're there for nothing more than to have something to do after work.  Of course, you and I both know that is a fantasy and not the reality.



Ain't it the truth... 



MJS said:


> Those schools that say they have 300 students would have probably 10, if that, if they taught only to a select group, but thats another thread.



I'd actually be interested in seeing that thread get going... 



MJS said:


> Now, I'll use Kenpo because that is the art I train in.  If we look at any Kenpo tech. we'll see breaks, shots to the eyes, neck, groin..you name it.  A simple lapel grab tech., has an elbow break/dislocation/hyperextension, and a hit to the throat.  All for a simple grab.  Now, I've always said that we need to adapt to whats presented to us at the time, as well as possibly modifying our tech.  So, for that lapel grab, omit the arm shot, but strike down instead to bring them closer, and do a backfist or palm to the face, instead of the hit to the neck.



Yes, neck shots are loaded with potential for grief... literally. There are all kinds of ways an attack between the jaw and the base of the neck can be catastrophic. A hard palm-heel strike to the lower face is going to give them more pain than they ever thought possible, but it's unlikely to involve the city coroner.  



MJS said:


> So, in the end, we have a good portion of the teachers out there, myself included, that have a limited understanding, at best, of the legal system, teaching.  Good thing I like to show other alternatives to the techs in the system.



The problem in part is the discrepancy between the way people think of the MAs, and hand-to-hand combat in general, vs. the reality. We're not in the 19th c. Okinawan villages, or the hardscrabble streets of immediate post-Occupation Korea. People get their information to a remarkable degree from movies and television, and how many times is a fistfight on TV followed by a lawsuit? 

One of the best services the MA orgs could provide their members would be seminars in different parts of the country a couple times a year on self-defense law and the crucial bits you need to know about it if you expect to use your training for self protection. Everyone says, better to be judged by twelve than carried by six, but what if you wind up being judged by twelve for something much less than a life-and-death confrontation? That little saying isn't going to sound quite so convincing under those circumstances....


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## Archangel M (Nov 30, 2008)

Perhaps the arrest was policy there, but here (if the entire story is as it appears on its face) I would have let the DA proffer charges if he so desired.


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## jks9199 (Nov 30, 2008)

Archangel M said:


> Perhaps the arrest was policy there, but here (if the entire story is as it appears on its face) I would have let the DA proffer charges if he so desired.


I agree; I probably wouldn't have arrested the guy given the circumstances as reported, either.  I'd definitely have wanted to run it by the prosecutor, at a minimum.

But, the paratrooper had only been in the area for only 8 months, looking for work.  I suspect that there's at least a possibility that he's not there legally.  That'd create a problem for me; am I going to be able to locate him should the prosecutor's office decide to place charges when the investigation is complete?

It's also very possible that it's routine to charge someone; I know that in some states even cops in obviously clean shootings are sent before the grand jury, for example.


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## SamT (Dec 1, 2008)

Skipping most of the posts, sounds like procedure. And I don't blame him for shooting the teen. As my instructor (former bodyguard and currently an armored car guard, also a certified firearms instructor) once told me: "When someone has a gun, you have no idea if they're going to use it or not. The safest route is the one that eliminates the threat the fastest. In my case, if someone pulls a gun, I'll shoot them with it." I've seen the moves he's talking about with that too, very scary.

I bet the case will be thrown out and the guy will walk free.


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## MJS (Dec 1, 2008)

exile said:


> I'd actually be interested in seeing that thread get going...


 
Here ya go. 





> Yes, neck shots are loaded with potential for grief... literally. There are all kinds of ways an attack between the jaw and the base of the neck can be catastrophic. A hard palm-heel strike to the lower face is going to give them more pain than they ever thought possible, but it's unlikely to involve the city coroner.


 
This is where the knowledge of pressure points would be handy.  I'm no expert, but I'd imagine theres quite a few in that area of the neck and jaw.





> The problem in part is the discrepancy between the way people think of the MAs, and hand-to-hand combat in general, vs. the reality. We're not in the 19th c. Okinawan villages, or the hardscrabble streets of immediate post-Occupation Korea. People get their information to a remarkable degree from movies and television, and how many times is a fistfight on TV followed by a lawsuit?
> 
> One of the best services the MA orgs could provide their members would be seminars in different parts of the country a couple times a year on self-defense law and the crucial bits you need to know about it if you expect to use your training for self protection. Everyone says, better to be judged by twelve than carried by six, but what if you wind up being judged by twelve for something much less than a life-and-death confrontation? That little saying isn't going to sound quite so convincing under those circumstances....


 
Agree


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## sgtmac_46 (Dec 22, 2008)

This is a case of the idiocy of the People's Republic of California.  This wouldn't have happened in Missouri or Texas.  We wouldn't have arrested the guy, we'd have taken his information, conducted an investigation, and turned it over to the Prosecutor, who would have concluded it was an obvious case of self-defense.

Then we would have simply mourned that the fact that he didn't KILL the punk, who we have probably dealt with many times, instead of just wounding him.

The excuse making for the kind of state that ARRESTS a guy who is put in this kind of situation boggles my mind and gives me a headache.....THIS IS WHY DOZENS OF STATES HAVE PASSED ENHANCED CASTLE DOCTRINE LAWS!  To protect law abiding citizens from the EXCESSES of the STATE!

This guy would have been given an AWARD in TEXAS!


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## sgtmac_46 (Dec 22, 2008)

exile said:


> My guess is, this is a routine step that always kicks in whenever there's violence involving a weapon, until an official narrative is approved identifying who is the assailant and who the victim. They will almost certainly toss the arrest record out once it's established that the juvenile brought the gun to the original crime scene, that there was a close-quarters struggle, and that the gun went off in the course of it. What they probably want to do is ascertain that the guy didn't get the gun away from the perp and then fire a couple of rounds at his attacker out of anger, as at least some people might be strongly tempted to do under the circumstances.
> 
> At least, I'd _hope_ it was just a routine step with no lifespan after the initial investigation...
> 
> Added in edit: just saw the link to the Kajukenbo site that Mike posted, and yes, Mr. Powell's explanation was exactly the kind of thing I had in mind. The facts really do need to be assessed. Even if we think the attacker was a disgusting piece of vermin, it's also true that the concept of self-defense we have has certain major legal constraints built into it.


 In California it does.......most Americans, though, find that kind of hair-splitting when faced with lethal violence asinine......as we should.

Whether he was angry when he shot the guy is irrelevant.....the fact remains he was also in fear for his life from a guy who pointed a gun at HIM.....had he taken the gun away, and a split second shot him STONE COLD DEAD IN THE FACE.....he was still operating within a lethal force situation where a man had just tried to kill him, and was still in close proximity involved in a lethal force struggle with him.

Most of us really don't care about the details beyond those larger facts.....I certainly don't care enough about the 'disgusting piece of vermin' to care if his self-defense went a fraction of a centimeter beyond what was necessary......most folks don't CARE!

He pulled a loaded gun on an innocent by-stander, and as a result died.  That's good enough for me.....and good enough in a great many states in this country.


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## sgtmac_46 (Dec 22, 2008)

Tez3 said:


> It says he was arrested on suspicion of assault which while on the face of it seems harsh but I believe is a correct procedure. The law must be seen to be done and justice must be seen to prevail. If everything happened the way the guy says he will be released with no stain on his character, if he's lying them he'll be charged.
> I don't know what your law on arrest is, here arresting someone means only that you suspect them of doing something even if you actually saw them doing it. It gives the police the right to take someone to the police station to be questioned. Depending on the evidence you will then be charged with an offence or 'de arrested'. The police here do not decide whether to charge people, that power lies with the Crown Prosecution Service (representing  the Queen, cases are cited as Regina v ..........). In this case a man shot another which is a crime, whether it is justified or not has to be determined by evidence
> The point of investigating someone who claims self defence is that not everyone, obviously, is going to be honest. If it's investigated everytime it will act as a deterrent to someone who plans a murder and then claim self defence. it's common sense.


 'Suspicion' is not enough to arrest someone in ANY STATE!  The US CONSTITUTION, 4th Amendment, requires that arrests be the result of Probable Cause!

What California is operating under is the notion that assault is NOT justified, unless their Prosecutor concludes it is.  The bottom line is that the police in this case, possibly operating under department policy, or simply direction of command, chose to arrest the guy.


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## sgtmac_46 (Dec 22, 2008)

MJS said:


> Oh I agree.  Obviously any situation is tense, moreso if a weapon comes into play, so yes, the thought of taking it away and using it against the other person, Im sure comes to mind.  Obviously as tempting as it is, its probably not the best option unless the listed things present themselves.
> 
> On the other hand, one has to wonder why important things like this are rarely, if ever, taught in a martial arts class.  I mean think about it....when was the last time, in an average class, legal aspects mentioned?  People teach students potentially deadly moves, yet they dont give them the full package.


 WHAT?!  Not only is taking the gun away and USING it on the attacker a GOOD idea, when confronted by an (obviously ARMED!) gang, it's probably the SMARTEST IDEA!

Most states wouldn't blink twice at this.....this is only an issue because it's California.  

I guarantee you put the argument about using the gun you just took away from your attacker in front a jury to prosecute this guy in most of the country, and they'll laugh you out of the court room as the find the guy NOT GUILT by reason of self-defense.

I don't know where the notion came from that, when confronted by a VIOLENT ARMED STREET GAME, you need to play patty cake with them, even if you manage to disarm one of them....


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## Guardian (Dec 22, 2008)

They might have done it for his protection also, you take out one gang member or (Associate) what a joke on that portion, you can guarantee the rest are coming for you.

I agree SgtMac, only in California is that a problem, the cops in most of Texas here would slap you on the back and say good job and have a nice day.

Ok, maybe that's going overboard alittle, but you get my point.


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## sgtmac_46 (Dec 22, 2008)

Guardian said:


> They might have done it for his protection also, you take out one gang member or (Associate) what a joke on that portion, you can guarantee the rest are coming for you.
> 
> I agree SgtMac, only in California is that a problem, the cops in most of Texas here would slap you on the back and say good job and have a nice day.
> 
> Ok, maybe that's going overboard alittle, but you get my point.


 No, I don't think it's going overboard at all......shoot a known armed gang member in Texas, and most cops would ask you why you didn't just go ahead and KILL THE SOB!


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## MJS (Dec 22, 2008)

sgtmac_46 said:


> WHAT?! Not only is taking the gun away and USING it on the attacker a GOOD idea, when confronted by an (obviously ARMED!) gang, it's probably the SMARTEST IDEA!
> 
> Most states wouldn't blink twice at this.....this is only an issue because it's California.
> 
> ...


 
Let me clarify.  1 on 1 situation.  You take the gun away and then proceed to blow his head off.  You're telling me that is ok?  Again, I'm talking 1 on 1.  Isn't that akin to empty hand SD, where you the threat is no longer and you proceed to kick the crap out of the guy...even when he's no longer a threat?

Now, yes, against multiples, especially if more than one is armed...well, that is different, and in that case, yes, I would use the weapon against them.

I know that I've mentioned in other posts, the use of an equalizer, especially if faced with odds that are against you. My apologies if I gave the wrong impression.


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## matt.m (Dec 22, 2008)

exile said:


> Yes, and that is potentially a very explosive issue for the MA scene.
> 
> The problem is that if you teach real, effective combat techs to your students, you are teaching a range of things which could have disastrous effects for someone on the receiving end of them, even if justified. Most people, though, do not realize that defending themselves has legal impacts for _them_ as well as the attacker. 'I was _innocent_I was just trying to protect myself', is the basic premise, and yes, my own feeling is, the first law of life is to protect your own lifeno _plausible_ ethical philosophy denies us the right to do thatbut there is still the problem of establishing to society (via the legal process, but that's basically what you're doing) that you were in the right in defending yourself as you did. A damaged windpipe, a neck twist, even a hard shot to the chest, can be permanently disabling, or even lethal. If you train people to do these things, and don't tell them the legal diciness of such actions, you're doing them a major disservice.
> 
> But then, how many MA instructors are really up on SD law, apart from instructors who are also LEOs (or attorneys themselves)? Ya can't teach what ya don't know...


 

Interesting statement my friend.  However, what if the martial artist is disabled both physically and mentally such as I.  Example: I walk with cane and 2 leg braces.  I have a horrible back.  I also have P.T.S.D. and Traumatic Brain Injury.  This is all stemmed from being active duty marine corps.  Oh and by the way I still teach judo as a 2nd dan.

That would make my 'self-defense' very plausible.  Being handicapped upon entanglement.  I hate altercations of any sort, so I do everything in my personal power to absolutely dissuade such things.  However, case in point with the gentleman vs. gang member, unseemly things happen to good people and that is just bad luck....

The fact that the man waited for police adds a lot of credibility to his own character and testimony.


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## Tez3 (Dec 22, 2008)

sgtmac_46 said:


> 'Suspicion' is not enough to arrest someone in ANY STATE! The US CONSTITUTION, 4th Amendment, requires that arrests be the result of Probable Cause!
> 
> What California is operating under is the notion that assault is NOT justified, unless their Prosecutor concludes it is. The bottom line is that the police in this case, possibly operating under department policy, or simply direction of command, chose to arrest the guy.


 

Do you have 'arresting' and 'charging' as separate things? We arrest for various reasons one of them being to allow a quicker investigation or to stop someone disappearing. It doesn't mean they are locked up, it means they are taken to a police station asap. They can easily be de-arrested.
Looking at Wikipedia I think being arrested is more serious in the States than it is here.


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## Brian King (Dec 22, 2008)

*MJS wrote*



> Let me clarify. 1 on 1 situation. You take the gun away and then proceed to blow his head off. You're telling me that is ok? Again, I'm talking 1 on 1. Isn't that akin to empty hand SD, where you the threat is no longer and you proceed to kick the crap out of the guy...even when he's no longer a threat?


 
I suppose it would depend on the situation. After getting the takeaway did the attacker keep attacking? Did they make a move like they are accessing an additional weapon? Were/are you in fear for your life? Are you injured/wounded or fatigued? Is there a size or age discrepancy? Do you have a means of escaping the situation? Or did the attacker raise their hands and obey all commands? Did the attacker turn and flee down the street while you pursued him? Did you empty the firearm into them as they lay in the gutter screaming NO? Did you fire deliberately to stop an attack or accidentally while grappling for the fire or did you fire while in a blind rage?

I imagine that it would also depend on your articulation and actions after the shooting. Did you call for an ambulance and police? Did you say that you were attacked or did you say that you just killed someone? Did you try to render aid or did you change the scene to make you look better (drag the body back inside)

Many different things can make a difference in the scenario and the justification or lack of justification for killing. Last of all do you already have the name of a good attorney? 

Warmest Regards
Brian King


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## jks9199 (Dec 22, 2008)

Tez3 said:


> Do you have 'arresting' and 'charging' as separate things? We arrest for various reasons one of them being to allow a quicker investigation or to stop someone disappearing. It doesn't mean they are locked up, it means they are taken to a police station asap. They can easily be de-arrested.
> Looking at Wikipedia I think being arrested is more serious in the States than it is here.


Yes; they're two separate parts of the process.  Each state has it's own process and names for some of the steps, and there are some differences, but the US criminal justice system includes several different points for an independent assessment of probable cause.  Warning... lots of confusing legal stuff follows.  (See HERE, as well.)

Once a crime has been commited, several things can happen.  A police officer may make an on-view arrest; the cop sees you do it, and nabs you then and there.  In misdemeanors, a citizen or police officer may go before a magistrate and give a sworn statement requesting a warrant of arrest; felonies generally must be requested by the police. 

In a few cases, for misdemeanors, the police officer may release the accused on a summons, with their written promise to appear.  If so, the summons is the charging document.  Otherwise, the officer must take the accused before a magistrate without undue delay.  

At the magistrate, the officer (or victim in some cases) describes what happened.  The magistrate serves two functions: first, they are an independent person assessing whether or not probable cause for the warrant exists, and second, they make the initial bail decision.  (If a person was arrested pursuant to an already issued warrant, the magistrate is only making initial bail decisions.)

The accused has the opportunity, generally, to make bail.  After all, they're only accused, so we can't keep them in custody unless they're a threat to the public or there's reason to believe that they won't come to court.  Issuance of the warrant is when the person is charged -- though you could argue that it doesn't matter until the warrant is served.

Arraignment is the initial appearance before a judge.  Generally, this is pro forma; the judge informs the accused of the charges, and may alter or set bail, and may appoint counsel for the accused.  Arraignment usually takes just a few minutes, though it may go longer if there's an argument about bail

The next step in the process is the preliminary hearing; the prosecution puts on enough of its case to establish, in the eyes of a judge, whether or not there is probable cause for the case to go to trial.  For most misdemeanors, the prelim is often combined with or followed immediately by the trial.  Felonies go to the grand jury, a panel of citizens who once again decide whether or not there is probable cause to bind the case over for trial.  Only the police officer testifies, and the grand jurors may question the officer.  In the courts in my area -- grand jury for most cases is a formality; the saying is that the grand jury will indict a ham sandwich.   

After grand jury, a felony finally goes to trial, with the prosecution presenting their case in chief, followed by the defense, followed by any rebuttal case... until the case is handed over to the trier of fact (either a judge or jury).  

There are also things like straight indictments at the grand jury...  and I haven't bothered distinguishing between courts of record and courts not of record, or district and circuit courts.  Or even touched the appellate process.

But that's kind of a nutshell of the Virginia criminal justice process.  We only have 49 others... plus the federal system.


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## Tez3 (Dec 22, 2008)

A different procedure I think from ours, we seem to have more powers of arrest, all offences are arrestable.
The best description other than technical manuals I've found on our arrest procedures is from dear old Wikipedia!
http://www.wikicrimeline.co.uk/index.php?title=Power_of_arrest


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## MJS (Dec 22, 2008)

Brian said:


> *MJS wrote*
> 
> 
> I suppose it would depend on the situation. After getting the takeaway did the attacker keep attacking? Did they make a move like they are accessing an additional weapon? Were/are you in fear for your life? Are you injured/wounded or fatigued? Is there a size or age discrepancy? Do you have a means of escaping the situation? Or did the attacker raise their hands and obey all commands? Did the attacker turn and flee down the street while you pursued him? Did you empty the firearm into them as they lay in the gutter screaming NO? Did you fire deliberately to stop an attack or accidentally while grappling for the fire or did you fire while in a blind rage?
> ...


 
Hey Brian,

Yes, you're right, alot of it comes down to the situation.  I've said the same thing many times on other threads of similar nature...assess the situation and respond to whats presented to you at the time.  In todays lawsuit happy world, some people feel that they need to tread lightly.  I tend to cite the "I'd rather be judged by 12 than carried by 6" saying, although that may not be the popular thing amongst some. 

If I'm faced with a weapon, IMO, the person just upped the ante and gets what he gets, and if thats a busted nose, a few teeth knocked out or an eye, then so be it.  I'm far from a Superman, and who knows, I could end up getting seriously hurt or worse.  

I would say though, that intentionally using the weapon on the bad guy after the disarm has happened, may be frowned upon.  Guess it all depends on the state you're in as well as the people deciding your fate.  If we look back at the post on the Kaju Cafe, that should explain more.


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## jks9199 (Dec 22, 2008)

Tez3 said:


> A different procedure I think from ours, we seem to have more powers of arrest, all offences are arrestable.
> The best description other than technical manuals I've found on our arrest procedures is from dear old Wikipedia!
> http://www.wikicrimeline.co.uk/index.php?title=Power_of_arrest


Again, speaking only for Virginia, a good cop should be able to articulate grounds to make a custodial arrest for almost any offense, if they really need to.  It may require a bit of creativity... but a good cop should be able to put the pieces together in a way that supports taking someone into custody that needs to be hooked up.  

At the same time -- a good cop is going to have the common sense not to hook someone who can and should be released on a summons without a reason.

We can detain someone briefly (see all the discussion on Terry stops) on reasonable articulable suspicion.  We can even, in some cases and if it's tied directly to confirming or dispelling the suspicions, take a suspect somewhere else.

But an actual arrest *requires* probable cause, per the 4th Amendment of the US Constitution. 

Note that some states may allow holding someone longer than others before going before the magistrate or similar process, but custody is custody.  If you don't have PC, you don't have the grounds for taking someone into custody.

"De-arrest" is a term of art here; generally it means that you had everything adding up to PC in the street, but subsequent information cleared or exonerated the person.  The most common way I've seen it come up is with DUIs; a person fails field sobriety, and refuses (or it's not available) the preliminary breath test.  When they get hooked and transported to an evidentiary test, they come in below even the no-presumption zone, and there's absolutely no evidence of drugs.


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## Archangel M (Dec 22, 2008)

Or you finally figure out that they are diabetic.


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## sgtmac_46 (Dec 22, 2008)

MJS said:


> Let me clarify.  1 on 1 situation.  You take the gun away and then proceed to blow his head off.  You're telling me that is ok?  Again, I'm talking 1 on 1.  Isn't that akin to empty hand SD, where you the threat is no longer and you proceed to kick the crap out of the guy...even when he's no longer a threat?
> 
> Now, yes, against multiples, especially if more than one is armed...well, that is different, and in that case, yes, I would use the weapon against them.
> 
> I know that I've mentioned in other posts, the use of an equalizer, especially if faced with odds that are against you. My apologies if I gave the wrong impression.



I will bet you a years salary that, if you are confronted by an robber and, immediately upon disarming him of his gun, while still in close quarters struggle with him, and you shot him in the face with his own gun at point blank range.....there isn't a jury in the State of Missouri, where I live, that would blink twice before finding you not guilty by reason of self-defense.....ASSUMING it ever even remotely got as far as a jury.

It's not the same as continuing to beat someone.....having just INSTANTLY disarmed AN ARMED ASSAILANT, while still in a violent struggle with him over the gun, a struggle that can INSTANTLY shift back in his favor at a moments notice.......i'll take my chances with the jury.

The bottom line is that, bringing a gun in to the equation, ups the ante to lethal force levels........and just, as an LEO, I can use lethal force on someone who is attempting to take my gun away, even before they have managed to do it, if I manage to take their gun away, and we're still in a close proximity struggle, the fight is FAR FROM OVER just because I have his gun.....and unless I do something decisive, I may lose the advantage i've just won through skill and/or luck.


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## sgtmac_46 (Dec 22, 2008)

Tez3 said:


> Do you have 'arresting' and 'charging' as separate things? We arrest for various reasons one of them being to allow a quicker investigation or to stop someone disappearing. It doesn't mean they are locked up, it means they are taken to a police station asap. They can easily be de-arrested.
> Looking at Wikipedia I think being arrested is more serious in the States than it is here.



An arrest in the US is, BY DEFINITION, is a SEIZURE under the 4th Amendment of the US Constitution



> _*The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. *_



The US Constitution trumps all state laws.

Apparently that's one way where UK law is different.......ALL arrests in the US require probable cause of a crime.


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## sgtmac_46 (Dec 22, 2008)

Tez3 said:


> A different procedure I think from ours, we seem to have more powers of arrest, all offences are arrestable.
> The best description other than technical manuals I've found on our arrest procedures is from dear old Wikipedia!
> http://www.wikicrimeline.co.uk/index.php?title=Power_of_arrest



It would appear that you have much more arrest powers in the UK......LEO's in the US are bound by US Constitutional requirements, specifically as i've outlined the 4th Amendment.


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## Tez3 (Dec 23, 2008)

sgtmac_46 said:


> It would appear that you have much more arrest powers in the UK......LEO's in the US are bound by US Constitutional requirements, specifically as i've outlined the 4th Amendment.


 
An arrest here though has less significance that it does in the States, it doesn't create or go on a record if theres nothing to charge you with. Sometimes in a big brawl it's easier to arrest everyone and take them all down the station to be questioned. 
In the case in the thread though I doubt the guy defending himself would have been arrested on the spot,it would depend on what the officers felt was going on, most likely he'd be asked to come and make a statement and that statement along with all or any others would go to the CPS who would decide what to do. However if they felt a crime may have been committed and on the scene it's hard to get all the facts as a precaution they'll arrest both and get it sorted properly at the station which is better than jumping to conclusions and getting it wrong.


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## MJS (Dec 23, 2008)

sgtmac_46 said:


> I will bet you a years salary that, if you are confronted by an robber and, immediately upon disarming him of his gun, while still in close quarters struggle with him, and you shot him in the face with his own gun at point blank range.....there isn't a jury in the State of Missouri, where I live, that would blink twice before finding you not guilty by reason of self-defense.....ASSUMING it ever even remotely got as far as a jury.
> 
> It's not the same as continuing to beat someone.....having just INSTANTLY disarmed AN ARMED ASSAILANT, while still in a violent struggle with him over the gun, a struggle that can INSTANTLY shift back in his favor at a moments notice.......i'll take my chances with the jury.
> 
> The bottom line is that, bringing a gun in to the equation, ups the ante to lethal force levels........and just, as an LEO, I can use lethal force on someone who is attempting to take my gun away, even before they have managed to do it, if I manage to take their gun away, and we're still in a close proximity struggle, the fight is FAR FROM OVER just because I have his gun.....and unless I do something decisive, I may lose the advantage i've just won through skill and/or luck.


 
Mu subsequent posts should clarify my position a bit more.   Likewise, I'll take my chances with the jury as well.  Downside is that the majority of the time, you'll have a bunch of people who have no martial arts background, have a distorted view of the arts, in addition to a few bleed hearts...you know, the ones who always manage to work in the "Oh, the poor bad guy must've had a hard life growing up" comment.


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## sgtmac_46 (Dec 23, 2008)

MJS said:


> Mu subsequent posts should clarify my position a bit more.   Likewise, I'll take my chances with the jury as well.  Downside is that the majority of the time, you'll have a bunch of people who have no martial arts background, have a distorted view of the arts, in addition to a few bleed hearts...you know, the ones who always manage to work in the "Oh, the poor bad guy must've had a hard life growing up" comment.



That's why you have the right to question potential jurors.....in a self-defense situation you have to pick members of juries who are ex-military.....they WILL understand about split second decisions.

All you need on a jury is ONE GUY who knows what the hell is what.....and you won't be convicted of anything.......in all but the most fruit cake liberal areas folks will understand that a man who shoves a gun in your face is a threat to your life......and a little explaining will convince them that just because you managed to get the gun, doesn't mean the lethal confrontation is remotely over.

Yes, some moron Prostitutor in San Francisco or New York, who's a card-carrying member of HCI and the Brady Bunch may want to make an example out of you.......but in most parts of this country Prosecutors are elected.........and most wouldn't push too hard on such a case, as they are likely to get 'unelected' come next election by prosecuting innocent citizens defending themselves.

But the bottom line is that you have to live long enough to get prosecuted.


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## Brian King (Dec 23, 2008)

*Tez3 wrote:*



> An arrest here though has less significance that it does in the States, it doesn't create or go on a record if theres nothing to charge you with.


 
One gentleman that I trained with in the 1990s wanted to become a police officer; he applied all over trying to get hired. He came close a few times but didnt end up high enough on the PT tests or high enough on the written tests but he kept trying and training and then the Seattle police department became very interested going thru the written tests and the physical tests and the psychological testing. He had been working as a school bus driver so he could work with people and practice his driving and learning the area streets. Well the police department also does a background check. They have you list anything that you have done wrong, anything that you maybe stole as youth, any drugs that you might have experimented with etc. This guy when he was younger had traveled to England for a holiday. He became involved in a brawl. He was not one of the ones fighting (he says) but they all had to go to the police station. He said he was not photographed or fingerprinted he just had to give a statement. Police said no big deal go back to your hotel. Well he neglected to mention this event on the background check forms; he forgot to bring it up during the few face to face meetings. He was not hired because the investigators did somehow find out about the incident (Interpol perhaps?). On his denied application it sated that he was not hired for moral (I am forgetting the actual term they used) inadequacy. With that his dream of getting on any police department was ended. He quit training as his interest in Martial arts at that time was to advance his chance of becoming a police officer and his survival as a police officer. Not a totally sad story as he turned around and applied for some local fire departments and all that practice with the various state federal and local police forces paid off and he was hired almost immediately. I have not seen him in over fifteen years or so and to be honest I have only his version of the story and what he was or was not charged with while in England and what was reported in his background check

Warmest Regards
Brian King


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## Tez3 (Dec 23, 2008)

Brian, if he wasn't charged with anything there would be no record to give to anyone. Even if he had a record I'm not sure how anyone would find out from America, unless he had been deported, then the American authorities would have a record. If he'd been a witness I'm not sure if he'd have to mention it at interview or not, again there would be no record with his name on it, the same as if he had been arrested but not charged again no record.


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