# The Pre-Emptive Strike, The Law and The 3rd Party View.



## MJS (Jun 17, 2008)

On another thread in this section, the subject of SD against a MMAist came up.  The thread started to drift a bit and the discussion of the pre-emptive strike came up and how this action may be viewed by a jury or bystanders as well as the police.  Rather than sidetrack that thread, I wanted to continue the discussion here.  

In the other thread, JKS stated this:

"The concept of preemptive self defense has been discussed several times previously (check among these threads, for example), and I'd be happy to discuss it again. (In brief, yes, you can generally defend yourself before you get hit -- but you have to articulate why very carefully.) But, it's pretty far off topic for this thread, so if you want to do so, let's either start a new thread, or revive one of the previous ones."

Let the discussion begin! 

Mike


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## kwaichang (Jun 17, 2008)

Virginia Law basically has  three lines of justifications that have been developed over the past three decades: lesser harmful results, forced choice and the rights theory. The "lesser harmful result" argument maintains that the killing of the aggressor is a lesser harm than the death of the defender. The "forced choice" argument says that self-defense is either justified because the defender is uniquely forced to choose between his life and the life of the aggressor, or excused because the he lacks real choice. Finally, the "rights theory" justifies self-defense by the prevailing right of the defender not to be killed over that of the aggressor.

There is also the  Duty of Retreat before Killing which I am researching now as I believe Va. changed this requirement.


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## MJS (Jun 17, 2008)

Posted on the other thread:


Originally Posted by *allenjp* 

 
_That's the exact problem I think is that most jurors will not have had to face a situation like that. It's the same problem I have when I argue the futility of gun control laws that are too restrictive. When I hypothesize about that person being attacked by someone, many times I get answers like "Well that wouldn't happen to me because I wouldn't be in a place where thaings like that happen" or "In my whole life of 40 something years I have never had a situation like that" or even worse "If I am in a situation like that I would rather them kill me than me kill them". It is precisely that kind of thinking that makes them think that even if you were the one attacked, you probably did something to deserve it in the first place. Even if just by your very presence in the place where the altercation ocurred.

And I haven't even covered the situation where the police lie to convict you, yes I have seen it happen, and just try to get a juror to believe your word over that of a police officer..._

_Yes, I agree, this is a problem, and it goes to show the uneducated views of people who sit on juries and make decisions.  Hell, I don't frequent bad places either, but in todays world its not safe to go anywhere.  Just a few weeks ago, a guy was walking to breakfast, going down the same road he always went down, in the same neighborhood he was part of and got beat up by some punks.  Busted the guy up pretty bad.  I'd bet anything that he never dreamed that would happen, but sadly it did.  So for a juror to make a crazy comment like that, well.....I guess it shows that they're more willing to be victims and they feel that everyone should be a victim.  I'm sorry, but I don't feel that anyone should be a victim._


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## allenjp (Jun 17, 2008)

I should say that those comments were not made by JURORS per se, but by every day joes & janes. But juries are made up of every day joes & janes, and we should know that a lot of people that are not defense minded as we are will react in those ways when they happen to be on juries. Not everyone of course, but we need to be aware that no matter how logical or good our arguments are, in court many people will dissmiss them. 

I also think it should be stressed that defense laws are mostly state by state, and also juries change in different jurisdictions. Most of what I have posted here has been based on my experiences in the courts in southern california. Perhaps, as kwaichang has done, if people have experiences in other states, or even other countries, they should post them so as to inform people better.

Oh, and sorry for hijacking the other thread...


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## FearlessFreep (Jun 17, 2008)

> "18-1-704. Use of physical force in defense of a person.
> Statute text
> 
> (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or *imminent use* of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.



This is for Colorado, emphasis mine

From http://publicola.mu.nu/archives/2007/02/03/colorado_use_of_force_laws.html


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## cfr (Jun 17, 2008)

Someone once told me that striking open handed as opposed to closed looked much better/ less aggressive to juries. No idea if this is factual or not, but I thought I'd throw it out there.


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## FearlessFreep (Jun 17, 2008)

cfr said:


> Someone once told me that striking open handed as opposed to closed looked much better/ less aggressive to juries. No idea if this is factual or not, but I thought I'd throw it out there.



My understanding is that that is a myth


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## jks9199 (Jun 17, 2008)

A few caveats:

I'm not a lawyer.  I'm not providing any sort of legal advice or guidance.  Each state's laws are different, and these laws may and must shape your actions.  You should spend some time learning your state laws, as well as the general principles. 

With those out of the way...

First -- let's recall that any time we use force to defend ourselves, we have to justify that force.  We have to be able to show that we reasonably believed (I prefer this phrasing to fear; you don't have to fear something to realize it's about to happen.) that the person would inflict bodily harm on us.  This belief has to be based on facts that a person of normal intelligence and experience would find believable and credible.  If we react to an actual attack, whether or not we're successfully struck, this is pretty easy.  After all -- they either hit or tried to hit us!

When we move into a preemptive strike -- things get harder.  A preemptive strike occurs BEFORE the suspected attack has been fully initiated; you have to be able to show that the attack was about to happen, and that your direct intervention was reasonable and appropriate to the circumstances.  This isn't really different for a cop or bouncer or similar person on duty and a private person; the "pros" just run into more situations where they are likely to be justified in acting preemptively.  It's impossible to generate every possible situation, but some typical elements that support acting preemptively would include a verbalized intent to attack, coupled with the ability to carry out the attack.  A guy so drunk that he can't sit, let alone stand, is not likely to be considered able to carry out even the most horrific of threats.  It's going to have to be pretty imminent, likely to occur in the very near future.   Just because he might attack someone, I can't go out right now and beat down the Sergeant-at-Arms for the local outlaw motorcycle gang; he's actually got to be getting ready to attack me or someone else. Most importantly, the force used has to be reasonable to the threat presented.

The reasonableness of the level of force is a complicated calculus.  It has to take into account factors about the victim, the assailant, and the total circumstances.  Note that  reasonable force does not mean "force exactly equal to that used to commit the attack."  If someone pushes you, you're not necessarily limited to pushes to protect yourself, but you also are probably not justified in using lethal force.  But you also aren't limited to saying "please, stop hurting me..."  You can generally use sufficient force to stop the attack and prevent a further attack -- but you can't just keep thumping them after their down, and you can't chase them down as they run away from you. 

It's not an easy thing to judge in the heat of the moment, and it's not easy for a jury to judge it after the fact -- if you've done the "second part" of your job well.  That second part is articulating the facts and circumstances that led you to believe that you were going to be attacked.  The whole issue of talking to the police or not has been discussed (see here, for one of the more recent threads); I say that making enough of a statement to allow the responding officers to assess the circumstances may just save you a visit to the jail, but I respect the arguments of those who counsel you to say nothing without an attorney.  And juries are notoriously unpredictable should you face one -- but the better you can paint that picture that you believed what you did was necessary to protect yourself, and the more effectively you can put those jurors in your shoes, the more likely that you'll have a desirable outcome.

Again -- it's important that, if you train with any sort of an eye towards self defense, you invest the time to learn the basic laws regarding defending yourself.


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## jks9199 (Jun 17, 2008)

cfr said:


> Someone once told me that striking open handed as opposed to closed looked much better/ less aggressive to juries. No idea if this is factual or not, but I thought I'd throw it out there.





FearlessFreep said:


> My understanding is that that is a myth



I think it's one of those things that would depend on the circumstances. I think it's pretty damn aggressive if I walk up to a stranger and slap him in the face.  But a palm to the chest of a person who's building up to a punch may look like a push, not a strike...

I don't think you can make a hard & fast rule on this, or on things like "a kick is higher force than a punch" or "shod feet are lethal weapons."  There's just too much to consider; are wrestling shoes the same as steel toe boots?  Is a kick to the outer thigh more force than a punch to the throat?  Just too much to consider to draw a hard line...


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## allenjp (Jun 17, 2008)

Jks, 

Very well put on all counts...


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## kwaichang (Jun 17, 2008)

Beware "open hand" looks like *karate chop* to juries.  Closed handed strikes are more what the average citizen would use.


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## punisher73 (Jun 17, 2008)

I'm with jks9199 on this that even though I am not a lawyer, I do work in the LE field and I am a defensive tactics instructor for our dept.  As jks9199 said, check your state laws, and also your city ordinances and if you can talk with an assistant prosecutor (or district attorney) on how those laws are enforced and interpreted in YOUR city/state.

One thing I thought I would throw out that I see almost EVERYONE forget about when talking about the pre-emptive strike.  Most states couple the charge ASSAULT and battery.  "Battery" is an unwanted touch (ie: punch, push, slap etc.)  "Assualt" is the threat to do harm to an individual.

So back to our scenario.

You and a drunk at a bar,get into an argument back and forth and are calling each other names.  He starts to take a swing at you and you punch him first.  He gets knocked back, but no damage or injury.  The fight is immediately broken up and you are both detained until the police get there.  Can you claim self-defense?  You can articulate that he was starting to throw a punch and you only punched him once to protect yourself and didn't do anything else.  Witnesses ALL say the same thing.  You and the other guy got into an argument, the other guy started to punch you and you hit him first and stopped it....

Here is the part that everyone forgets about......THE FIGHT HAD ALREADY BEGUN BEFORE THE FIRST PUNCH WAS THROWN!!!  This falls into the category of the "assault" part.  By arguing back and forth you are consenting to what results and can not claim self-defense in this situation, in fact, many cities have an ordinance called "disorderly by fighting" which falls into a disorderly conduct type statute and is a lot less stringent to prove (also a lot lesser offense). 

Most states have what is called a "Duty to Retreat", you must make SOME kind of effort on your part to diffuse the situation and to leave or get away if it is safe to do so.  Put your hands up and say "I don't want any trouble", or you keep backing up and he keeps encrouching your personal space, your back is against the wall.  You do turn away and he comes at you.  You need to articulate EXACTLY what you did to prevent the situation and that you fulfilled "your duty" and did everything on your part to safely leave without resorting to violence.


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## jks9199 (Jun 17, 2008)

punisher73 said:


> I'm with jks9199 on this that even though I am not a lawyer, I do work in the LE field and I am a defensive tactics instructor for our dept.  As jks9199 said, check your state laws, and also your city ordinances and if you can talk with an assistant prosecutor (or district attorney) on how those laws are enforced and interpreted in YOUR city/state.
> 
> One thing I thought I would throw out that I see almost EVERYONE forget about when talking about the pre-emptive strike.  Most states couple the charge ASSAULT and battery.  "Battery" is an unwanted touch (ie: punch, push, slap etc.)  "Assualt" is the threat to do harm to an individual.


I debated hitting that point, and decided that it would only lead to confusion.  Assault is putting a person in fear of an offensive or unwelcome touching; battery is the actual unwanted touch.  As you said -- by the time the punch is moving, the assault has happened.  


> Most states have what is called a "Duty to Retreat", you must make SOME kind of effort on your part to diffuse the situation and to leave or get away if it is safe to do so.  Put your hands up and say "I don't want any trouble", or you keep backing up and he keeps encrouching your personal space, your back is against the wall.  You do turn away and he comes at you.  You need to articulate EXACTLY what you did to prevent the situation and that you fulfilled "your duty" and did everything on your part to safely leave without resorting to violence.




Duty to retreat laws are complicated, and vary.  Without spending an hour or two looking up state codes, I'm not comfortable with saying "most" -- but I know there are quite a few.  The exact wording is important, and what constitutes adequate "retreat" is even more complicated.  Some states would require you to run as far as you can, and have no other alternative but getting hit/hurt before you defend yourself; others just require some sort of retreat, and still others have no requirement.  That's why you need to learn YOUR state laws.

But it's never going to hurt you, should the case go before either a civil or criminal jury, to be able to explain everything you did to avoid a physical confrontation!


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## punisher73 (Jun 17, 2008)

jks9199 said:


> Duty to retreat laws are complicated, and vary. Without spending an hour or two looking up state codes, I'm not comfortable with saying "most" -- but I know there are quite a few. The exact wording is important, and what constitutes adequate "retreat" is even more complicated. Some states would require you to run as far as you can, and have no other alternative but getting hit/hurt before you defend yourself; others just require some sort of retreat, and still others have no requirement. That's why you need to learn YOUR state laws.
> 
> But it's never going to hurt you, should the case go before either a civil or criminal jury, to be able to explain everything you did to avoid a physical confrontation!


 
I agree, that is why I had my disclaimer upon your disclaimer. LOL

It is a point that alot of people don't think about.  So I thought I would touch on it.  I know our AP that I have talked to thinks that if two people are standing there arguing back and forth and then someone throws a punch and you "defend" yourself, it is still mutual combat.  You were "assaulting" the other person as well when you were yelling back and forth and compounding the problem (that is why our Pros, usually goes with the disorderly by fighting).


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## Kacey (Jun 17, 2008)

We discuss this and other self-defense scenarios in class on a periodic basis - most recently just last week.  The concept of "imminent harm" came up, especially from one of my students who is a judge.  His take was that as long as you can justify that you felt you were in imminent danger, you could react - here's the scenario we were discussing:

One of my students (female) was at a party with friends when another party-goer stuck his hand under her skirt and patted her behind, and then removed his hand.  She spun around, hands out, and grabbed him by the genitals.  She wanted to know if her reaction was legally acceptable (she's from South America).  The consensus was that if he had _kept_ his hand on her behind, she'd have been okay, or if he had grabbed her genitalia or bosom, but once he removed his hand, she was not legally clear - especially as her choice of target was an increase in the level of concern.


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## KenpoTex (Jun 17, 2008)

I think it's counterproductive to the discussion to get hung up on terms like "assault" vs. "battery," etc. As has been said before, check the laws in your area because terms and definitions vary. For example, in Missouri, there is no distinction between assault and battery, there is just assault. This includes everything from "common" or "3rd degree" assault which can be pushing someone or even saying something that puts them in fear, all the way up to 1st degree assault which is basically attempted murder. 

I think the big thing to remember is that in order for your act of defense to be legally justified, you must be able to articulate that the attacker possessed the Ability, Opportunity, and Intent to cause you (or a third party) injury or death. If that requirement is satisfied, then you will be justified in using force to protect yourself regardless of whether the force is used preemptively or not (I'm not getting into "duty to retreat" since this varies so widely from place to place).


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## bowser666 (Jun 17, 2008)

I am not sure if I am correct here but in regards to a pre-emptive strike , etc....  I thought the only way striking an assailant is either in immediate defense ( if they are attacking you ) or if they have you cornered and there is no avenue of retreat ? Otherwise you risk getting in trouble with the law.  Even if the person has verbally threatened you, you still do not have a right to strike.  Not to mention a good lawyer could sue your pants off , if the other decides to seek representation. Think before you act or react for that matter.


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## kwaichang (Jun 17, 2008)

All of the aforementioned is why the first "rule" given in my self defense classes is/was:  avoid.

P.S. a hand up a skirt is sexual abuse; she could have slapped him without risking a battery charge....actually called assault in most states.


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## FearlessFreep (Jun 17, 2008)

bowser666 said:


> I am not sure if I am correct here but in regards to a pre-emptive strike , etc....  I thought the only way striking an assailant is either in immediate defense ( if they are attacking you ) or if they have you cornered and there is no avenue of retreat ? Otherwise you risk getting in trouble with the law.  Even if the person has verbally threatened you, you still do not have a right to strike.  Not to mention a good lawyer could sue your pants off , if the other decides to seek representation. Think before you act or react for that matter.



*That* varies from place to place


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## Kacey (Jun 17, 2008)

kwaichang said:


> All of the aforementioned is why the first "rule" given in my self defense classes is/was:  avoid.
> 
> P.S. a hand up a skirt is sexual abuse; she could have slapped him without risking a battery charge....actually called assault in most states.



That's what we told her; due to cultural differences, it took us some time to convince her of the difference between slapping him and grabbing his gonads.


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## 7starmarc (Jun 17, 2008)

One thing to think about. I have heard the idea that since the person claiming self defense "didn't have a mark on him" that the claim of self defense was not as strong or outright false. The most recent time I heard this was from a relative of mine who happens to be a prosecutor discussing a recent case.

This can really cast your pre-emptive actions in a bad light.

Furthermore, we train to defend ourselves. Even if we are not acting in a pre-emptive manner, if you successfully block/dodge an initial strike, you can still look like the bad guy. Of course, some will argue that if you have the skill to avoid bodily harm, then perhaps you don't acutally _need_ to hurt the other person to remain safe. Assinine, I know, but I could conceive of that argument being made at some level, and some juror buying it.

"Mr. Rex Jones has a black belt in Rex Kwan Do, so he was never really in danger of actually being hurt. So I ask you, members of the jury, was it really necessary for him to hurt poor Mr. Scumbag? I think not."

I guess in any of the actions, you really need to be able to articulate clearly and convicingly your rationale for action and genuine concern for your own safety or the safety of others.


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## allenjp (Jun 17, 2008)

These are exactly the kinds of things I have been referring to. It sounds idiotic, but people actually buy into this crap, and people are what juries are made of.


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## MJS (Jun 17, 2008)

allenjp said:


> I should say that those comments were not made by JURORS per se, but by every day joes & janes. But juries are made up of every day joes & janes, and we should know that a lot of people that are not defense minded as we are will react in those ways when they happen to be on juries. Not everyone of course, but we need to be aware that no matter how logical or good our arguments are, in court many people will dissmiss them.
> 
> I also think it should be stressed that defense laws are mostly state by state, and also juries change in different jurisdictions. Most of what I have posted here has been based on my experiences in the courts in southern california. Perhaps, as kwaichang has done, if people have experiences in other states, or even other countries, they should post them so as to inform people better.


 
I suppose what we need to hope for is that a good portion of the 12 has some resonable common sense. 



> Oh, and sorry for hijacking the other thread...


 
No worries.   I think that discussions such as this are important, especially for those whos priority is self defense.


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## FearlessFreep (Jun 17, 2008)

allenjp said:


> These are exactly the kinds of things I have been referring to. It sounds idiotic, but people actually buy into this crap, and people are what juries are made of.



Well one thing running through my mind is this whole conversation has been that laws will vary and judges will vary and juries will vary but the one thing you can do is have a mindset of...

Well I first phrased it a long time ago as "Only act when the cost of not acting is greater than the cost of acting"  which may not be wholly clear or accurate, but it does provide a nice quip to remind me not to do anything I don't have to.

Which is why I think training for confidence is important. The more confident, the more relaxed, the more relaxed, the less likely to do something out of stress, the less likely to overreact or react prematurely

I think in general, the more confidently you can say "I only did what I really had to, and no more", the better off you will be


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## MJS (Jun 17, 2008)

cfr said:


> Someone once told me that striking open handed as opposed to closed looked much better/ less aggressive to juries. No idea if this is factual or not, but I thought I'd throw it out there.


 
If I had to take a guess, I'd say yes, it would look better in their eyes.  Kind of along the lines of having your hands up in a defensive posture, rather than closed fists.  You're still able to defend and execute strikes, but to the bystander, it doesnt look as bad.


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## MJS (Jun 17, 2008)

jks9199 said:


> A few caveats:
> 
> I'm not a lawyer. I'm not providing any sort of legal advice or guidance. Each state's laws are different, and these laws may and must shape your actions. You should spend some time learning your state laws, as well as the general principles.
> 
> ...


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## 7starmarc (Jun 17, 2008)

Forgive me for not quoting, but I'm a bit lazy right now. 

The "reasonable" argument is not what we reasonably believe. What we reasonably believed is a minor part of the equation. What the defense lawyer must be able to demonstrate is that a "reasonable person" would "reasonably believe" that such a course of action was necessary.

We actually run into more problems by virtue of our training because we may be portrayed as no longer being the "everyman" or the "reasonable person". Violence, or the practice/preparation for violence is much more a part of our lives than the average person on the street. Is that "reasonable"? I believe so. I believe that it is the sane and intelligent thing that a reasonable person should do. Is it seen as "reasonable" by 12 strangers who may be very foreign to the concepts and practices we are relatively comfortable? I can only hope so if I am in the situation that I find myself having to provide reason and defense for actions which have caused physical harm to another person.


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## MJS (Jun 17, 2008)

punisher73 said:


> I'm with jks9199 on this that even though I am not a lawyer, I do work in the LE field and I am a defensive tactics instructor for our dept. As jks9199 said, check your state laws, and also your city ordinances and if you can talk with an assistant prosecutor (or district attorney) on how those laws are enforced and interpreted in YOUR city/state.
> 
> One thing I thought I would throw out that I see almost EVERYONE forget about when talking about the pre-emptive strike. Most states couple the charge ASSAULT and battery. "Battery" is an unwanted touch (ie: punch, push, slap etc.) "Assualt" is the threat to do harm to an individual.
> 
> ...


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## jks9199 (Jun 17, 2008)

7starmarc said:


> One thing to think about. I have heard the idea that since the person claiming self defense "didn't have a mark on him" that the claim of self defense was not as strong or outright false. The most recent time I heard this was from a relative of mine who happens to be a prosecutor discussing a recent case.
> 
> This can really cast your pre-emptive actions in a bad light.


It can; that's why I stressed the need to be able to explain why you felt you had to act, and to be able to put the judge and jury in your shoes.  I've seen police officer reports to justify putting a pretty serious hurt on someone that amounted to "The suspect became uncooperative, so we took him to the ground."  Not to good...  Compare that with "The suspect refused to obey my commands to place his hands behind his back.  He raised his fists in a fighter's stance, and began to advance on me, at which time I stepped in, grabbed his left arm and used an arm bar throw to take him to the ground."  If you're going to act preemptively, you have to be able to describe what led you to feel that you were about to hurt in a way that a drunken 5th grader would believe you were right.


> Furthermore, we train to defend ourselves. Even if we are not acting in a pre-emptive manner, if you successfully block/dodge an initial strike, you can still look like the bad guy. Of course, some will argue that if you have the skill to avoid bodily harm, then perhaps you don't acutally _need_ to hurt the other person to remain safe. Assinine, I know, but I could conceive of that argument being made at some level, and some juror buying it.
> 
> "Mr. Rex Jones has a black belt in Rex Kwan Do, so he was never really in danger of actually being hurt. So I ask you, members of the jury, was it really necessary for him to hurt poor Mr. Scumbag? I think not."
> 
> I guess in any of the actions, you really need to be able to articulate clearly and convicingly your rationale for action and genuine concern for your own safety or the safety of others.



Again, it's going to come down to articulation.  "When he punched me, I used a forearm block to keep him from hitting me, and immediately countered with a punch to his face to keep him from trying to hit me again."  It's also going to be important to be able to show that you refrained from turning a defense into an assault; that there was no significant break between his attack and your defensive actions.  Just 'cause someone's punched you (or worse), you can't go chasing after them and keep attacking them as they try to get away.


allenjp said:


> These are exactly the kinds of things I have been referring to. It sounds idiotic, but people actually buy into this crap, and people are what juries are made of.



Yep... That's why articulation, being able to tell that story so that a listener can put themselves in your shoes and understand why you acted is so vital.


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## MJS (Jun 17, 2008)

bowser666 said:


> I am not sure if I am correct here but in regards to a pre-emptive strike , etc.... I thought the only way striking an assailant is either in immediate defense ( if they are attacking you ) or if they have you cornered and there is no avenue of retreat ? Otherwise you risk getting in trouble with the law. Even if the person has verbally threatened you, you still do not have a right to strike. Not to mention a good lawyer could sue your pants off , if the other decides to seek representation. Think before you act or react for that matter.


 

Someone verbally assaulting you vs. making aggressive moves towards you, drawing back to hit you...that is where the pre-empt comes in.  The focus of this discussion is who the pre empt is going to look in the eyes of the police, bystanders, as well as the courts.

Mike


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## jks9199 (Jun 17, 2008)

7starmarc said:


> Forgive me for not quoting, but I'm a bit lazy right now.
> 
> The "reasonable" argument is not what we reasonably believe. What we reasonably believed is a minor part of the equation. What the defense lawyer must be able to demonstrate is that a "reasonable person" would "reasonably believe" that such a course of action was necessary.
> 
> We actually run into more problems by virtue of our training because we may be portrayed as no longer being the "everyman" or the "reasonable person". Violence, or the practice/preparation for violence is much more a part of our lives than the average person on the street. Is that "reasonable"? I believe so. I believe that it is the sane and intelligent thing that a reasonable person should do. Is it seen as "reasonable" by 12 strangers who may be very foreign to the concepts and practices we are relatively comfortable? I can only hope so if I am in the situation that I find myself having to provide reason and defense for actions which have caused physical harm to another person.


Strictly speaking, you're not held to some higher standard just because you're a martial artist or a cop.  On paper, your actions are still assessed by what a reasonable person would believe, in that situation. (Graham v Connor, 490 U.S. 386 (1989) set the standard for that police use of force is judged by objective reasonableness, not a due process analysis.)

Of course -- in reality, a jury may do just about anything...  Tjhat's why, should you ever find yourself on the wrong side of a courtroom, be it civil or criminal, you want to go into hock to get the best attorney to represent you.  Not the best you can afford -- the best.


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## 7starmarc (Jun 17, 2008)

jks9199 said:


> Strictly speaking, you're not held to some higher standard just because you're a martial artist or a cop. On paper, your actions are still assessed by what a reasonable person would believe, in that situation. (Graham v Connor, 490 U.S. 386 (1989) set the standard for that police use of force is judged by objective reasonableness, not a due process analysis.)
> 
> Of course -- in reality, a jury may do just about anything... Tjhat's why, should you ever find yourself on the wrong side of a courtroom, be it civil or criminal, you want to go into hock to get the best attorney to represent you. Not the best you can afford -- the best.


 
Yes, I was not referring to a legal standard, but of the application of that same standard to different people, under different stereotypes.


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## FearlessFreep (Jun 17, 2008)

> The "reasonable" argument is not what we reasonably believe. What we reasonably believed is a minor part of the equation. What the defense lawyer must be able to demonstrate is that a "reasonable person" would "reasonably believe" that such a course of action was necessary.
> 
> We actually run into more problems by virtue of our training because we may be portrayed as no longer being the "everyman" or the "reasonable person". Violence, or the practice/preparation for violence is much more a part of our lives than the average person on the street. Is that "reasonable"? I believe so



Which is why I was talking about confidence above.  Your training should give you confidence in yourself.  Your confidence in yourself and your confidence in your training and technique means you should have a much higher threshold of response.  Since you are more able to defend yourself, you are less likely to feel threatened and therefore less likely to respond.


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## sgtmac_46 (Jun 19, 2008)

cfr said:


> Someone once told me that striking open handed as opposed to closed looked much better/ less aggressive to juries. No idea if this is factual or not, but I thought I'd throw it out there.


 It looks better to witnesses, which in turn SOUNDS better to juries.


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## sgtmac_46 (Jun 19, 2008)

jks9199 said:


> Strictly speaking, you're not held to some higher standard just because you're a martial artist or a cop. On paper, your actions are still assessed by what a reasonable person would believe, in that situation. (Graham v Connor, 490 U.S. 386 (1989) set the standard for that police use of force is judged by objective reasonableness, not a due process analysis.)
> 
> Of course -- in reality, a jury may do just about anything... Tjhat's why, should you ever find yourself on the wrong side of a courtroom, be it civil or criminal, you want to go into hock to get the best attorney to represent you. Not the best you can afford -- the best.


 Hold on.....you're correct as it pertains to Martial Artists......make no mistake about it, you WILL be held to a different standard as a police officer, specifically because you operate with the power of the state.  Ergo, unlike a private citizen, who is not SUBJECT to the requirement that they act in accordance with the Constitutional Rights of others, police officers can be charged with 'Violation of Rights' under federal law, both criminally and civily.


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## kwaichang (Jun 19, 2008)

kwaichang said:


> There is also the Duty of Retreat before Killing which I am researching now as I believe Va. changed this requirement.


Unfortunately, there is NO Castle Doctrine in Virginia.  It was defeated in the Senate in 2007.  However, the following may be of interest.
*Brandishing a Deadly Weapon In Defense of Personal Property is A Criminal Act*
Virginia case law, found here has several excellent examples of situations and their legality.
http://www.virginia1774.org/Page5.html


The threat to use deadly force by brandishing a deadly weapon has long been considered an assault. Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955). In Merritt v. Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 398 (1935),


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## allenjp (Jun 19, 2008)

kwaichang said:


> Unfortunately, there is NO Castle Doctrine in Virginia. It was defeated in the Senate in 2007. However, the following may be of interest.
> *Brandishing a Deadly Weapon In Defense of Personal Property is A Criminal Act*
> Virginia case law, found here has several excellent examples of situations and their legality.
> http://www.virginia1774.org/Page5.html
> ...


 
Same in CA. you cannot use force or the threat of deadly force to defend against a property crime. Only against a threat to a person. That dynamic changes completely however once they force their way into your house...


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## jks9199 (Jun 19, 2008)

allenjp said:


> Same in CA. you cannot use force or the threat of deadly force to defend against a property crime. Only against a threat to a person. That dynamic changes completely however once they force their way into your house...


With very few exceptions, you cannot use *lethal* force to defend property; even a dirtbag's life outweighs most mere "stuff."  The premise in the Castle Doctrine isn't that you're defending your home -- it's a presumption that a person who breaks into your house intends to do you harm, and you're entitled to protect yourself from that harm.  Even in Texas (the most liberal codification I'm aware of is Texas law), I still wouldn't suggest simply blasting someone breaking into your house or trying to take your stuff.  You might win the criminal trial -- but you'll probably have an uphill battle in the wrongful death case.


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## kwaichang (Jun 19, 2008)

That's when you put a knife in the burglars hand, after you've coveyed him to the next world.


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## punisher73 (Jun 19, 2008)

sgtmac_46 said:


> Hold on.....you're correct as it pertains to Martial Artists......make no mistake about it, you WILL be held to a different standard as a police officer, specifically because you operate with the power of the state. Ergo, unlike a private citizen, who is not SUBJECT to the requirement that they act in accordance with the Constitutional Rights of others, police officers can be charged with 'Violation of Rights' under federal law, both criminally and civily.


 
Two court cases I know of.  One was a deputy who worked in corrections (who was off duty at the time) and used to get into fights with his wife.  I knew someone who knew both parties and it was fighting it wasn't an abuse situation, it was a two way street.  His wife had diagnosed psych issues and would fly off the handle and start hitting him.  One day when they are fighting, she calls the police, one thing leads to another and he is arrested and jailed.  The court set a HUGE bond amount because part of their logic was being a trained officer he was trained in hand to hand and could seriously hurt someone more than the average citizen.

The other case was a regular citizen who punched his girlfriend and cracked her orbital socket.  He was charged quite high with a huge bond and part of the court's reasoning was that the guy took kickboxing and he was a "trained fighter" who would hurt someone more seriously than the average person.

Is there something on the books that says if you're a LEO or MA that your hands are "deadly weapons", no but in my experience where I live it does play a big part on how you're charged and your bond while awaiting trial.

PS: We found out about the fighting AFTER this incident happened.  Most people in the dept. did not know this was happening.  Long story, but someone knew the guy's wife and she would always talk about them fighting and that she would just start hitting him.


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## MJS (Jun 19, 2008)

http://www.cga.ct.gov/2007/rpt/2007-R-0052.htm

My theory is simple.  I didn't invite someone into my home, at 3am.  You use force to enter my residence with the intent to rob and possibly cause serious bodily harm to me and my wife.  That being said, you get what you deserve and if that means a dog bite, or hit with a blunt object or my hands, then so be it.  In light of the home invasions that have happened in my state, I'm not taking the chance that the same will happen to me.


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## kwaichang (Jun 19, 2008)

Indeed I wouldn't take a chance either.  However, what all have been pointing out here is the vagueness of the law in many states and the duty to retreat in others.
Thus post # 39 which was handed down for generations in my family and others I grew up with.:supcool:


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## allenjp (Jun 19, 2008)

jks9199 said:


> With very few exceptions, you cannot use *lethal* force to defend property; even a dirtbag's life outweighs most mere "stuff." The premise in the Castle Doctrine isn't that you're defending your home -- it's a presumption that a person who breaks into your house intends to do you harm, and you're entitled to protect yourself from that harm. Even in Texas (the most liberal codification I'm aware of is Texas law), I still wouldn't suggest simply blasting someone breaking into your house or trying to take your stuff. You might win the criminal trial -- but you'll probably have an uphill battle in the wrongful death case.


 
In California this is one area where the law is actually quite clear. When I say property crime I am more talking about your car, or something outside of your home. For example if someone is stealing something out of your back yard, or vandalizing your car in your driveway you cannot shoot him. However, the minute he forcibly enters your house you have every right to shoot him immediately because the law presumes that you have a reasonable fear of great bodily harm at that point.


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## FearlessFreep (Jun 19, 2008)

Ah





allenjp said:


> In California this is one area where the law is actually quite clear. When I say property crime I am more talking about your car, or something outside of your home. For example if someone is stealing something out of your back yard, or vandalizing your car in your driveway you cannot shoot him. However, the minute he forcibly enters your house you have every right to shoot him immediately because the law presumes that you have a reasonable fear of great bodily harm at that point.



Ahh... the "Hansel and Gretel" Defense


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## allenjp (Jun 19, 2008)

FearlessFreep said:


> Ah
> 
> Ahh... the "Hansel and Gretel" Defense


 

uhhhh, wha???


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## kwaichang (Jun 19, 2008)

FearlessFreep said:


> Ah
> 
> Ahh... the "Hansel and Gretel" Defense


 
no, no, that's where you stone him to death with batches of ginger bread cookies stashed inside a heavy purse.:wink:


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## FearlessFreep (Jun 19, 2008)

kwaichang said:


> no, no, that's where you stone him to death with batches of ginger bread cookies stashed inside a heavy purse.:wink:



I just thought it was when you cook the intruders because they've started eating your house


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## allenjp (Jun 19, 2008)

I said "entering", not "eating" lol...


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## kwaichang (Jun 19, 2008)

FearlessFreep said:


> I just thought it was when you cook the intruders because they've started eating your house


Oh, yeah, right; the "push them in the oven" defense.:supcool:


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## sgtmac_46 (Jun 20, 2008)

jks9199 said:


> With very few exceptions, you cannot use *lethal* force to defend property; even a dirtbag's life outweighs most mere "stuff."  The premise in the Castle Doctrine isn't that you're defending your home -- it's a presumption that a person who breaks into your house intends to do you harm, and you're entitled to protect yourself from that harm.  Even in Texas (the most liberal codification I'm aware of is Texas law), I still wouldn't suggest simply blasting someone breaking into your house or trying to take your stuff.  You might win the criminal trial -- but you'll probably have an uphill battle in the wrongful death case.


 That's perfectly legal in Texas and Missouri......oh, and the statute ALSO grants CIVIL immunity, so no 'wrongful death lawsuits'.  Even attempting one in Missouri results in the plaintiff being responsible for all attorney's fees on both sides, court costs.....AND any cost I incur defending myself.  Meaning fishing expeditions aren't real likely when A) The odds of winning are stacked and B) You have to pay all costs for even trying. The uphill battle becomes THEIRS.....as it should be. 

In fact, Missouri law makes it 'PRESUMED' that if someone 'Enters, attempts to enter or remains unlawfully in your residence OR vehicle OR temporary residence (including a tent or motel room) they are PRESUMED to be a threat to your LIFE'.  So any discussion of whether they just want your property is moot and irrelavent.  

The reasonable man sets out to adapt himself to fit the world around him......Texans and Missourians aren't reasonable people.......we set out to adapt the world (or at least our state laws) to fit us!  Imagine that.....government OF the PEOPLE, FOR the PEOPLE, and BY the PEOPLE!  What a concept!





> Use of force in defense of persons.
> 
> 563.031. 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:
> 
> ...





And THIS LITTLE SECTION HERE!



> Justification as an absolute defense, when.
> 
> 563.074. 1. Notwithstanding the provisions of section 563.016, a person who uses force as described in sections 563.031, 563.041, 563.046, 563.051, 563.056, and 563.061 is justified in using such force and such fact shall be an absolute defense to criminal prosecution or civil liability.
> 
> ...


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## sgtmac_46 (Jun 20, 2008)

punisher73 said:


> Two court cases I know of.  One was a deputy who worked in corrections (who was off duty at the time) and used to get into fights with his wife.  I knew someone who knew both parties and it was fighting it wasn't an abuse situation, it was a two way street.  His wife had diagnosed psych issues and would fly off the handle and start hitting him.  One day when they are fighting, she calls the police, one thing leads to another and he is arrested and jailed.  The court set a HUGE bond amount because part of their logic was being a trained officer he was trained in hand to hand and could seriously hurt someone more than the average citizen.
> 
> The other case was a regular citizen who punched his girlfriend and cracked her orbital socket.  He was charged quite high with a huge bond and part of the court's reasoning was that the guy took kickboxing and he was a "trained fighter" who would hurt someone more seriously than the average person.
> 
> ...


 You WILL be held to a higher standard as a police officer, and that doesn't have to be codified.  A prosecutor of whatever jurisidiction your incident occurred in will be PRESSURED by public interest to take a 'special' interest in your case.  The PERCEPTION by the public is that you will get 'special favor' because you are a cop.  The opposite is true....in an effort to show that they aren't biased TOWARD you because you a police officer, the Prosecutor WILL give you BOTH barrels of the criminal justice system.


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## sgtmac_46 (Jun 20, 2008)

kwaichang said:


> Unfortunately, there is NO Castle Doctrine in Virginia.  It was defeated in the Senate in 2007.  However, the following may be of interest.
> *Brandishing a Deadly Weapon In Defense of Personal Property is A Criminal Act*
> Virginia case law, found here has several excellent examples of situations and their legality.
> http://www.virginia1774.org/Page5.html
> ...


 No, not yet....but a number of folks are fighting for an enhanced castle doctrine to pass in Virginia so I think it's only a matter of time.  Anyone living in Virginia should call their representatives.


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## KenpoTex (Jun 21, 2008)

sgtmac_46 said:


> That's perfectly legal in Texas and Missouri......oh, and the statute ALSO grants CIVIL immunity, so no 'wrongful death lawsuits'. Even attempting one in Missouri results in the plaintiff being responsible for all attorney's fees on both sides, court costs.....AND any cost I incur defending myself. Meaning fishing expeditions aren't real likely when A) The odds of winning are stacked and B) You have to pay all costs for even trying. The uphill battle becomes THEIRS.....as it should be.
> 
> In fact, Missouri law makes it 'PRESUMED' that if someone 'Enters, attempts to enter or remains unlawfully in your residence OR vehicle OR temporary residence (including a tent or motel room) they are PRESUMED to be a threat to your LIFE'. So any discussion of whether they just want your property is moot and irrelavent.
> 
> The reasonable man sets out to adapt himself to fit the world around him......Texans and Missourians aren't reasonable people.......we set out to adapt the world (or at least our state laws) to fit us! Imagine that.....government OF the PEOPLE, FOR the PEOPLE, and BY the PEOPLE! What a concept!


 
beat me to it...while I'm originally from Texas, I can't complain too much about living in MO when we have laws like the above. 
I just wish they'd done what Fl. did and extended the protection to include "anywhere you have a legal right to be" (not just at home or in the car).


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## sgtmac_46 (Jun 21, 2008)

KenpoTex said:


> beat me to it...while I'm originally from Texas, I can't complain too much about living in MO when we have laws like the above.
> I just wish they'd done what Fl. did and extended the protection to include "anywhere you have a legal right to be" (not just at home or in the car).


 That was the way it originally read.....but a couple of the interests groups managed to get the language modified.  Still, not bad as it stands!


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## kwaichang (Jun 21, 2008)

sgtmac_46 said:


> Anyone living in Virginia should call their representatives.


 
Indeed and join the NRA-ILA as both help get laws that protect honest citizens.


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## Andy Moynihan (Jun 21, 2008)

I like Texas and Missouri.


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## kwaichang (Jun 21, 2008)




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## Andy Moynihan (Jun 21, 2008)

kwaichang said:


>


 

MINE!!!!!!!!!!!


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## KenpoTex (Jun 21, 2008)

Andy Moynihan said:


> I like Texas and Missouri.


 
If you ever decide to move to to the US, they're hard to beat


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## sgtmac_46 (Jun 21, 2008)

kwaichang said:


> Indeed and join the NRA-ILA as both help get laws that protect honest citizens.


 Thanks for saying what I should have said.  


I AM THE NRA!


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## sgtmac_46 (Jun 21, 2008)

Andy Moynihan said:


> I like Texas and Missouri.


 Yeah, if I ever leave Missouri it will be to move to Texas or Alaska!


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## kwaichang (Jun 22, 2008)

check out the other "not too opinionated signs"
http://www.nrailasigns.org/

New "I'm a Bitter Gun Owner and I Vote!" Yard Signs Available Now:  By now, you've all heard the Obama "bitter" quote:  "And it's not surprising then they get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations."  And it probably struck a nerve with you.  Well, we've created a new yard sign that will send a message from all of you "bitter" gun owners to Obama this election season: Our "I'm a Bitter Gun Owner and I Vote!" yard sign.


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## sgtmac_46 (Jun 23, 2008)

kwaichang said:


> check out the other "not too opinionated signs"
> http://www.nrailasigns.org/
> 
> New "I'm a Bitter Gun Owner and I Vote!" Yard Signs Available Now: By now, you've all heard the Obama "bitter" quote: "And it's not surprising then they get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations." And it probably struck a nerve with you. Well, we've created a new yard sign that will send a message from all of you "bitter" gun owners to Obama this election season: Our "I'm a Bitter Gun Owner and I Vote!" yard sign.


 CRAP!  I've got to get one of those NOW!


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## kwaichang (Jun 23, 2008)

:uhyeah:


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## bowser666 (Jun 24, 2008)

sgtmac_46 said:


> Yeah, if I ever leave Missouri it will be to move to Texas or Alaska!




Come on down to Texas  HAHA !!   It is funny that people talk about lethal force , in Texas.  There was a guy over in Dallas that owns a Junkyard auto salvage place that has been broken into many times.  The guy got tired of it and put in cameras and stuff , but it still kept happening.  So he decides to move in and live on the premises and buy a shotgun.  In the past 10 years he has shot and killed 5 people that have broken into his property and the each time it has been deemed that he is defending his property and that was that.


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## sgtmac_46 (Jun 24, 2008)

bowser666 said:


> Come on down to Texas  HAHA !!   It is funny that people talk about lethal force , in Texas.  There was a guy over in Dallas that owns a Junkyard auto salvage place that has been broken into many times.  The guy got tired of it and put in cameras and stuff , but it still kept happening.  So he decides to move in and live on the premises and buy a shotgun.  In the past 10 years he has shot and killed 5 people that have broken into his property and the each time it has been deemed that he is defending his property and that was that.


 THAT IS HILLARIOUS!


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## allenjp (Jun 25, 2008)

bowser666 said:


> Come on down to Texas HAHA !! It is funny that people talk about lethal force , in Texas. There was a guy over in Dallas that owns a Junkyard auto salvage place that has been broken into many times. The guy got tired of it and put in cameras and stuff , but it still kept happening. So he decides to move in and live on the premises and buy a shotgun. In the past 10 years he has shot and killed 5 people that have broken into his property and the each time it has been deemed that he is defending his property and that was that.


 
Let me get this straight...the guy actually moved his residence TO A JUNKYARD, so that he could be justified in killing the people who were stealing from him?

I'm sorry, I mean, I'm all for the guy defending what is his, but to LIVE IN A JUNKYARD to do it? Only in Texas (or arkansas). lol


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## kwaichang (Jun 25, 2008)

Well, if they continued stealing from his business, he might have been forced to live on the street; the choice seems reasonable.


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## allenjp (Jun 25, 2008)

I was just kidding...


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## sgtmac_46 (Jul 15, 2008)

allenjp said:


> I should say that those comments were not made by JURORS per se, but by every day joes & janes. But juries are made up of every day joes & janes, and we should know that a lot of people that are not defense minded as we are will react in those ways when they happen to be on juries. Not everyone of course, but we need to be aware that no matter how logical or good our arguments are, in court many people will dissmiss them.
> 
> I also think it should be stressed that defense laws are mostly state by state, and also juries change in different jurisdictions. Most of what I have posted here has been based on my experiences in the courts in southern california. Perhaps, as kwaichang has done, if people have experiences in other states, or even other countries, they should post them so as to inform people better.
> 
> Oh, and sorry for hijacking the other thread...


 Not only do laws vary from state to state, JURIES vary from state to state and region to region and rural versus urban.  A rural jury is MOST OFTEN going to error on the side of a private citizen defending himself, even if he went WAY OVERBOARD.  There's generally a much more 'independent' spirit and dislike of criminals among rural people's.  

Urban juries tend to be more sympathetic of criminals committing 'non-violent' crimes, and not very sympathetic with citizens engaging in violence to defend themselves.


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## allenjp (Jul 15, 2008)

VERY good point...


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## kwaichang (Jul 15, 2008)

sgtmac_46 said:


> A rural jury is MOST OFTEN going to error on the side of a private citizen defending himself, even if he went WAY OVERBOARD. There's generally a much more 'independent' spirit and dislike of criminals among rural people's.
> .


 You got that right.  Around here juries overwhelmingly decide in favor of the property owner even if the criminal is shot and no weapon found, the mere "threat of force" is enough for us to convict 'em.


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## allenjp (Jul 15, 2008)

Wish I could say the same about my area.


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