Can I claim self-defense if.......

[oftheherd1]

Just a couple of clarifications, bearing in mind that one needs to know the law in the jurisdiction where they live. It may be different from what I say.

First, as stated, if you start a fight, striking the person you start the fight with, that becomes assault and battery. You can indeed be charged with that offense, regardless of anything else that happens.

If for whatever reason you decide to withdraw from the fight, and clearly demonstrate that vocally and/or by attempting to withdraw, but the original 'victim' now continues to fight, that person has now become the assailant. If he puts the original assailant (you) in fear of his (your) life, the law allows one to defend their life by whatever means is needed to overcome the person assaulting them (you). If both persons are using their fists to begin with, the second person is going to have to show justification for using a weapon.

OK, so now you are charged with homicide and are in court. The prosecution must indeed prove you guilty beyond a reasonable doubt. Until you decide to claim self defense. Self defense is an affirmative defense. It means you are going to admit you killed the person, but attempt to show that you had a right to defend yourself in a manner that resulted in the death of the dead person. That opens you up to having to testify under oath, and admit under oath that you killed the person. Of course that ups the ante. So the fact you killed the person is no longer in doubt. Now you must prove you were required to use the force you did to save yourself. The burden of proof is now on you to prove you are innocent by reason of self defense. EDIT: Naturally, the prosecution is going to try to show you didn't have reason to act as you did, meaning you were not justified in killing the person. But once you assert self defense, you have eased the burden on the prosecutor. He doesn't have to prove beyond a reasonable doubt that you killed the person. Only that you lacked legal justification for doing so.

In the situation given by the OP, you have no witnesses. If the prosecution can show a long history of you and the dead person arguing about something, or many things, perhaps fighting, and if you have told witnesses you want to kill the dead person, naturally you aren't going to look good in the eyes of a jury. Even if that is not the way it happened, if for instance the dead person simply angered you and you decided to strike first, then found yourself in fear of your life, what if you are known to be a person who likes to fight, and has a reputation of liking to hurt people you fight? Again, you won't look so innocent. But of course none of those things were part of the supposition from the OP. Nonetheless, as the original instigator, your burden of proof will probably be higher in the jury's mind.

Another minor clarification, if you kill in defense of your family, being able to articulate a good reason for fearing for their life, it is not self defense. It will likely be considered justifiable homicide, as you have a legal right to defend your family from deadly force, and can use deadly force to do it. But it isn't self defense unless you were also under attack. In fact, you may remember Bill correctly making that same point in another thread some time ago.

 

[WC_lun]

A person can have injuries due to his own stupidity. Injury does not indicate self defense. It just means someone got hit. Why he got hit is the important part, not that he got hit.

As far as starting a fight then claiming self-defense after shooting the person you attacked, it would not fly in my state. That doesn't mean it wouldn't be possible in another state. I think the best line of self defense would be not to start any fights.

 

[Bill Mattocks]

A person can have injuries due to his own stupidity. Injury does not indicate self defense. It just means someone got hit. Why he got hit is the important part, not that he got hit.

As far as starting a fight then claiming self-defense after shooting the person you attacked, it would not fly in my state. That doesn't mean it wouldn't be possible in another state. I think the best line of self defense would be not to start any fights.

I agree; it appears that it would not fly in Missouri:

http://www.moga.mo.gov/statutes/chapters/chap563.htm

563.026. 1. Unless inconsistent with other provisions of this chapter defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute any crime other than a class A felony or murder is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability of avoiding the injury outweighs the desirability of avoiding the injury sought to be prevented by the statute defining the crime charged.

Of course, the state would still have the burden, even in Missouri, of proving that the shooter started the fight. If the shooter says the victim started it, and there is no other evidence to disprove that claim, then self-defense by deadly force would appear to be justified even under Missouri law.

I also agree with your conclusion; don't start fights. Or, as Will Smith in Men in Black put it, "Don't start nuffin', won't be nuffin'."

 

[Big Don]

You can CLAIM you're the King of Siam...

 

[Mark Jakabcsin]

Let's say I initiate a fight with someone, & during the course of the fight they get the better of me. But what my opponent doesn't know is that I have a gun. When he's getting the better of me, I pull my gun & shoot & kill him.

Can I claim self defense in a court of law later? Do I have a case?

Pretty sure the correct legal phrase is toast. Burnt crispy toast!

If you got lots of money you can buy a different outcome a high percentage of the time, otherwise......bring the jelly.

MJ

 

[Bill Mattocks]

Pretty sure the correct legal phrase is toast. Burnt crispy toast!

If you got lots of money you can buy a different outcome a high percentage of the time, otherwise......bring the jelly.

MJ

Please explain why you think this is so. I'm interested in your logic.

 

[WC_lun]

In many states, if a person is killed during the commision of a crime, all parties commiting the crime can be charged with murder. Wouldn't that take effect? If you start a fight you are committing assault. If the person you are assaulting starts to get the better of you, it does not nullify the assault. So if you shoot the person you assaulted, would it not qualify as a death while committing a crime? I know get away drivers have been charged with murders commited during roberies gone by. Seems to me, a man committing assault is more culpable than a get away driver. I also know the law does not always make sense.

 

[Mark Jakabcsin]

Please explain why you think this is so. I'm interested in your logic.

WC_Iun spelled it out fairly well. The original concept was the person started the fight. Hence they will be held accountable for the outcome. The state will argue that the person killed was attempting to protect himself against an aggressor. The aggressor was not required to defend himself, he had the option to not start the fight, he could have simply left, then there is no death. He chose not to hence he began a chain of events that ended in a death, he will bear a large portion of responsibility for that death.

A district attorney will see this as an opportunity to pad his statistics and put one more murderer behind bars. Whether you agree with that or not that is how the system works and how many decisions are made. With enough money just about outcome can be purchased and if a DA sees at the beginning a prosecution will be difficult then he might look at other options.

 

[Bill Mattocks]

In many states, if a person is killed during the commision of a crime, all parties commiting the crime can be charged with murder. Wouldn't that take effect? If you start a fight you are committing assault. If the person you are assaulting starts to get the better of you, it does not nullify the assault. So if you shoot the person you assaulted, would it not qualify as a death while committing a crime? I know get away drivers have been charged with murders commited during roberies gone by. Seems to me, a man committing assault is more culpable than a get away driver. I also know the law does not always make sense.

It depends upon the state's self-defense laws. In some states, you cannot successfully use a self-defense claim if you are engaging in an illegal act (such as assaulting the person whom you later kill). In other states, there is such requirement. In other words, it depends on where you live.

For example, in Michigan:
http://www.legislature.mi.gov/(S(x1...eg.aspx?page=getObject&objectName=mcl-780-972

SELF-DEFENSE ACT (EXCERPT)
Act 309 of 2006


780.972 Use of deadly force by individual not engaged in commission of crime; conditions.

Sec. 2.

(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.

(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.

(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.


History: 2006, Act 309, Eff. Oct. 1, 2006

Colorado, by contrast, is kind of wonky:

http://jeffco.us/jeffco/sheriff_uploads/revised_statutes.htm

Colorado Revised Statutes:

Use of Physical Force and Use of Deadly Physical Force


18-1-704. Use of physical force in defense of a person.


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 of 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.
Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:



The actor has reasonable ground to believe and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or
The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or
The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402 or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.



Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:



With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or
He is the initial aggressor, except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from-the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or
The physical force involved is the product of a combat by agreement not specifically authorized by law.

OK, so in Colorado, a person can not successfully claim self-defense if they are the initial aggressor, unless they try to disengage and make it clear to the other person that they don't want to fight anymore! How weird is that?

Arizona, on the other hand, has no such prohibition:

http://www.azleg.state.az.us/ars/13/00411.htm

13-411. Justification; use of force in crime prevention; applicability

A. A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other's commission of arson of an occupied structure under section 13-1704, burglary in the second or first degree under section 13-1507 or 13-1508, kidnapping under section 13-1304, manslaughter under section 13-1103, second or first degree murder under section 13-1104 or 13-1105, sexual conduct with a minor under section 13-1405, sexual assault under section 13-1406, child molestation under section 13-1410, armed robbery under section 13-1904 or aggravated assault under section 13-1204, subsection A, paragraphs 1 and 2.

B. There is no duty to retreat before threatening or using physical force or deadly physical force justified by subsection A of this section.

C. A person is presumed to be acting reasonably for the purposes of this section if the person is acting to prevent what the person reasonably believes is the imminent or actual commission of any of the offenses listed in subsection A of this section.

D. This section includes the use or threatened use of physical force or deadly physical force in a person's home, residence, place of business, land the person owns or leases, conveyance of any kind, or any other place in this state where a person has a right to be.

So in Arizona, if you start a fight, and the person you're fighting starts to get the better of you, and you reasonably believe you're in grave bodily danger, you still have the right of self-defense, including the use of deadly force. The key word is 'reasonably', but still there is no actual prohibition on you starting the fight.

 

[Bill Mattocks]

WC_Iun spelled it out fairly well. The original concept was the person started the fight. Hence they will be held accountable for the outcome. The state will argue that the person killed was attempting to protect himself against an aggressor. The aggressor was not required to defend himself, he had the option to not start the fight, he could have simply left, then there is no death. He chose not to hence he began a chain of events that ended in a death, he will bear a large portion of responsibility for that death.

Depends upon the state, in the first place - see my above post. And in the second place, the state has the burden proof that the person claiming self-defense was in fact the aggressor. When there is only one survivor no evidence to disprove the shooter's story, if he says he was attacked first, that's more than likely the way it will go; regardless of what actually happened.

I think a lot of people are reading newspaper stories and inserting their opinion as fact. They believe Zimmerman started the fight, and that therefore the police will accept their opinion as fact. At the moment, there is no evidence that Zimmerman started the fight.

A district attorney will see this as an opportunity to pad his statistics and put one more murderer behind bars. Whether you agree with that or not that is how the system works and how many decisions are made. With enough money just about outcome can be purchased and if a DA sees at the beginning a prosecution will be difficult then he might look at other options.

No, that's not how the system works. DA's do not want to spend money on cases they cannot win.

 

[Mark Jakabcsin]

No, that's not how the system works. DA's do not want to spend money on cases they cannot win.

You are making a huge assumption that there are no witnesses, that is not in the original post nor overly likely. Unless it is a truly random act the state has a good chance of proving motive. While this is not proof it is a step in that direction.

I recall a case in Georgia several years back where two neighbors shared a round about driveway. One of the neighbors due to no traffic flow would go the 20 or so feet in the wrong direction. This drove the other neighbor nuts who eventually staged an accident, while filming the entire thing, so he could take his neighbor to court. Unfortunately it all went bad and ended in gun battle with the death of the driver going the wrong way. The guy that staged it was charged with murder and reckless driving. I do not recall if it end up as manslaughter or not but since he started the events he held a great deal of responsibility.

It is very nice that you think the burden of proof is on the state and that ones word is all he needs but that is frankly not reality. We say guilty until proven innocent but that is rarely the case. Once charged you darn well better have the money to defend yourself, regardless of actual guilt.

Our legal system is built on the assumption that the righteous will win in a contest. Not overly different than a two knights fighting to the death to determine who is right and who is wrong. The outcome has little to do with reality. Choosing jurors, hiring expects, court room consultants, etc. have far more to do with the outcome.

Bottom line it is far better to not start fights.

Mark J.

 

[puunui]

Our legal system is built on the assumption that the righteous will win in a contest.

Our criminal legal system is built upon the protections contained in the US Constitution, specifically the 4th, 5th and 6th Amendments. Basically, you are innocent until proven guilty, that search warrants shall be issued only upon a showing of probable cause, you have a right against self incrimination, you are entitled to a speedy trial and effective assistance of counsel, that the standard of proof is beyond a reasonable doubt, etc.

 

[Bill Mattocks]

Our criminal legal system is built upon the protections contained in the US Constitution, specifically the 4th, 5th and 6th Amendments. Basically, you are innocent until proven guilty, that search warrants shall be issued only upon a showing of probable cause, you have a right against self incrimination, you are entitled to a speedy trial and effective assistance of counsel, that the standard of proof is beyond a reasonable doubt, etc.

I'm just going to +1 and QFT instead of trotting out all the reasons the post you responded to is wrong. Thank you!

 

[Josh Oakley]

I'm just going to +1 and QFT instead of trotting out all the reasons the post you responded to is wrong. Thank you!

I second the motion

Sent from my ADR6350 using Tapatalk

 

[Mark Jakabcsin]

A court trial is a contest. Plain and simple. I understand you might find that offensive, you may not want to admit that but at the end of the day it is a contest, not unlike a sporting event. It simply uses atributes other than physical skills, but at the end of the day it is a contest with the belief that the winner, the one with the best argument, is right. Problem is the best argument, regardless of the Constitution, can be and is purchased on a regular basis.

Sorry if this offends, I hang out with too many folks at all levels of our 'justice' system to have the 'guilty until proven innocent' blinders on. When it is your day in court you best have an A game on and a good A game costs.

But again we go afield from the original post. The premise is #1 starts a fight, the defender pulls a weapon to defend himself from an attacker, the attacker eventually kills the defender and tries to claim self defense. ....... Good luck with that.

As I said before, best to not to start fights.

Take care,

Mark J.

 

[Bill Mattocks]

I'm just walking away before I say something I'll regret.

 

[puunui]

A court trial is a contest. Plain and simple. I understand you might find that offensive, you may not want to admit that but at the end of the day it is a contest, not unlike a sporting event. It simply uses atributes other than physical skills, but at the end of the day it is a contest with the belief that the winner, the one with the best argument, is right. Problem is the best argument, regardless of the Constitution, can be and is purchased on a regular basis.

Can a good attorney as well as financial resources tip the scales of justice to one side? Sure. Often times that scale is tipped towards the side of the prosecution, especially the federal government, who will throw huge sums of money if they wish to convict someone. Someone in the mafia for example, years of wiretapping, surveillance, cultivating informants, the witness protection program, all of the resources brought to bear by the FBI and their specialized task forces cannot even compare to what a criminal defendant can put up. So you are right in that regard.

But that doesn't change the fact of what our criminal justice system is based on, which is the United States Constitution. I don't know if you have ever read the Constitution, but I believe it is one of those things that every American should read from start to finish.

 

[Grasshopper22]

Probably not, especially if you initiated the fight. Also if the fight was getting the better of you, to shoot the opponent would be extremely unnecessary.