Use of Force Law

[Tgace]

Again, that is stating the point I made. In NY if you can retreat, you are expected to do so. Someone takes a swing at me when I am walking down the street. I'm not supposed to hit back...I am supposed to leave the scene.

No.

You are misunderstanding the law. It says you can not use DEADLY PHYSICAL FORCE as long as you can retreat in complete safety. It does not say that you can't use Physical Force if someone takes a swing at you. Read the attached link and the other posts associated with it.

 

[jks9199]

How can you oversimplify something that is already simple? Some states don't care if your personal pride is at stake, others do. Now if you get into who started what, THAT is where it gets more involved...but there is nothing complicated about the fact that, if you are not in your own home or cornered in an alley (for example), the law in NY State is that you are expected to retreat.

Because, while use of force is actually largely common sense IF you understand the general principles, you've seriously misunderstood the general principles. Tgace is covering it in more detail -- I think he's much more familiar with NY law and use of force issues than either of us, just like I know I'm much more familiar with Virginia law and issues than either of you are. However, duty to retreat does not require you to run away at any cost -- only that any reasonable means of escaping be precluded.

Look, the general principle on using force to defend yourself can be pretty well summed up thusly: You may use only that force which is reasonably necessary to safely resolve the situation. I'd love to see a state who's laws will permit you to defend your pride alone, rather than physical injury. I don't think even Texas has gone quite that far. You may be thinking of the fighting words doctrine; that's case law and you'd better hope that the judge or jury buys your argument about what constitutes fighting words.

Oh, and who instigates a violent encounter, and the roles the parties play in the escalation of the encounter are pretty significant issues in assessing whether a particular use of force is justifiable.

 

[wingchun100]

No I'm not talking about defending your pride against fighting words. I'm talking about the fact that you can't pummel someone into oblivion. Once the threat is gone (for example, they give up), you can't keep hitting them.


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[jks9199]

No I'm not talking about defending your pride against fighting words. I'm talking about the fact that you can't pummel someone into oblivion. Once the threat is gone (for example, they give up), you can't keep hitting them.


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Name me ONE US state where you can legally "pummel someone into oblivion" and call it self defense. Show me the code section that says it. Re-read that sentence I wrote: You may use the force reasonably necessary to safely resolve the situation. That's the crux of the use of force in self defense. If you pummel someone into oblivion -- you aren't defending yourself. You crossed the line from defender into assailant. And you'll likely get the title "defendant."

 

[wingchun100]

Name me ONE US state where you can legally "pummel someone into oblivion" and call it self defense. Show me the code section that says it. Re-read that sentence I wrote: You may use the force reasonably necessary to safely resolve the situation. That's the crux of the use of force in self defense. If you pummel someone into oblivion -- you aren't defending yourself. You crossed the line from defender into assailant. And you'll likely get the title "defendant."

Um...I never said you COULD do that in any state. I said there are some states where you can stand your ground and fight back whereas in others you are expected to retreat ASAP.


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[ballen0351]

One interesting thing about the US: in eastern states like NY, if you are confronted on the street, the law is that you have to do whatever you can to create an escape route and leave. However, in the midwest and other locations, they take your pride into account! If some guy throws a punch at you, you are allowed to hit back even if you have a clear escape route. In NY they want you to take off like a punk, even if you could hand the guy his head on a platter. A lot of people hate NY State for a lot of reasons. I don't, although I certainly do hate THAT law.

Since when is avoiding a fight and getting away safe make you a punk? And no laws in any state give a crap about your pride

 

[jks9199]

Um...I never said you COULD do that in any state. I said there are some states where you can stand your ground and fight back whereas in others you are expected to retreat ASAP.


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Apparently, I'm missing your point. Perhaps you could try phrasing it another way -- because, at the moment, it seems that at least 3 of us who have professional, instructor level knowledge of use of force law, in 3 states, as well as the general principles across the US, are reading your posts pretty similarly. If you want to administer an Educational Beat Down (thanks to Rory Miller for the terminology) -- you better first, be right in the culture, and second, be ready to accept the ramifications -- legal and culturally. And that seems to be what you're implying...

However... I know in Virginia, we do have an idea called "mutual combat." Maybe that's what you're aiming to describe? The classic example would be the "friendly bar fight." It's social violence -- and everyone is really a willing participant. If I respond, and the situation appears to be two guys (almost always, rarely do you find gals doing this) proving their manhood for the amusement of the watching audience... we generally let the dust settle, maybe take 'em all in for Drunk In Public or the like, and let the fight be settled. If they really want to push for a warrant, they can ask the magistrate themselves. Of course, that goes out the window of someone is seriously injured...

 

[wingchun100]

I don't believe I was trying to give any kind of "beat down" or pretend I know more about the law than anyone else. All I tried to do was join in on the conversation with the laws that I read as I understood them. If I didn't grasp them completely, then naturally that is fine to say "you misunderstood that law." I'm humble enough to admit when I misunderstood something. However, I don't see the need to take it to a level of insulting someone. But hey, to each their own. If that's how some people get their kicks, who am I to take that joy away from them?

As for trying to phrase it in another way...nah, man, I'm good.

 

[PhotonGuy]

Since when is avoiding a fight and getting away safe make you a punk? And no laws in any state give a crap about your pride

Avoiding a fight and getting away doesn't make somebody a punk, but the way I see it, why should a person have to leave assuming they're in a public place. If somebody attacks me on the street why should I have to leave? I have as much of a right to be there as they do. To say people are expected to leave when confronted in public, that would mean that picking fights would legally give somebody more of a right to be at a place than whoever they're picking the fight with, because the person they're picking the fight with is supposed to get away and avoid the fight and thus leave the place.

 

[jks9199]

Avoiding a fight and getting away doesn't make somebody a punk, but the way I see it, why should a person have to leave assuming they're in a public place. If somebody attacks me on the street why should I have to leave? I have as much of a right to be there as they do. To say people are expected to leave when confronted in public, that would mean that picking fights would legally give somebody more of a right to be at a place than whoever they're picking the fight with, because the person they're picking the fight with is supposed to get away and avoid the fight and thus leave the place.

You don't necessarily have to bow out of each and every confrontation -- but you may lose the claim of self defense if you had alternatives to using force, most especially lethal force (which is generally defined as force that is likely to cause serious injury or death, not just guns or knives), and you didn't make some reasonable attempt to use them instead. But it's also generally bounded in the concept of reasonableness; what is reasonably likely to safely resolve the situation.

Let's maybe try some examples to look at this a bit deeper.

Guy's walking down the street. Someone clobbers him from behind, and he instantly turns and knocks the guy out with a spinning backfist. Classic self-defense, huh? He was hit, he reacted, and he didn't carry on to stomp the assailant's skull or anything like that.

OK... So, let's change things up. Guy is at a bar. He's confronted by a drunk idiot. They get to arguing about the relative merits of different versions of football. Shouting leads to shoving, shoving leads to a looping overhand right, and the guy blocks, traps the arm, and throws the drunk to the ground. He may not have a self defense claim; he was participating in the argument and the shoving match, and had plenty of opportunities to simply leave. It might be something on the order of imperfect self defense, since he didn't throw the first punch. It might go down as mutual combat.

Most of the situations run somewhere in between; maybe someone else can paint a few others that we can examine. The general idea is that we are a culture of laws and a certain level of civility, and we can resolve issues without killing each other -- or even simply pummeling each other into oblivion. And that, if we're attacked, we don't get carte blanche to mete justice out; we can protect ourselves, but are supposed to leave justice to the system.

 

[PhotonGuy]

You don't necessarily have to bow out of each and every confrontation -- but you may lose the claim of self defense if you had alternatives to using force, most especially lethal force (which is generally defined as force that is likely to cause serious injury or death, not just guns or knives), and you didn't make some reasonable attempt to use them instead. But it's also generally bounded in the concept of reasonableness; what is reasonably likely to safely resolve the situation.

Let's maybe try some examples to look at this a bit deeper.

Guy's walking down the street. Someone clobbers him from behind, and he instantly turns and knocks the guy out with a spinning backfist. Classic self-defense, huh? He was hit, he reacted, and he didn't carry on to stomp the assailant's skull or anything like that.

OK... So, let's change things up. Guy is at a bar. He's confronted by a drunk idiot. They get to arguing about the relative merits of different versions of football. Shouting leads to shoving, shoving leads to a looping overhand right, and the guy blocks, traps the arm, and throws the drunk to the ground. He may not have a self defense claim; he was participating in the argument and the shoving match, and had plenty of opportunities to simply leave. It might be something on the order of imperfect self defense, since he didn't throw the first punch. It might go down as mutual combat.

Most of the situations run somewhere in between; maybe someone else can paint a few others that we can examine. The general idea is that we are a culture of laws and a certain level of civility, and we can resolve issues without killing each other -- or even simply pummeling each other into oblivion. And that, if we're attacked, we don't get carte blanche to mete justice out; we can protect ourselves, but are supposed to leave justice to the system.

There is a problem when it comes to defining lethal force, since just about anything can kill so anything can be considered lethal force if the person on the receiving end dies. Tasers are generally not supposed to kill, they're just supposed to knock a person out but there are cases where people have been killed by tasers. A person could choke on pepper spray and die as unlikely as that is, or a person can be killed with a single punch although that's rare. Take your example of the guy being clobbered from behind and he hits his attacker with a spinning backfist. Lets say the attacker dies from the spinning backfist. Although chances are that won't happen, it can happen. Thus the defender used "lethal force" even if he didn't intend to kill his attacker. Just about anything can be called lethal force since just about anything can kill, pepper spray, tasers, bare hands, they can all kill.

 

[CNida]

You don't necessarily have to bow out of each and every confrontation -- but you may lose the claim of self defense if you had alternatives to using force, most especially lethal force (which is generally defined as force that is likely to cause serious injury or death, not just guns or knives), and you didn't make some reasonable attempt to use them instead. But it's also generally bounded in the concept of reasonableness; what is reasonably likely to safely resolve the situation.

Let's maybe try some examples to look at this a bit deeper.

Guy's walking down the street. Someone clobbers him from behind, and he instantly turns and knocks the guy out with a spinning backfist. Classic self-defense, huh? He was hit, he reacted, and he didn't carry on to stomp the assailant's skull or anything like that.

OK... So, let's change things up. Guy is at a bar. He's confronted by a drunk idiot. They get to arguing about the relative merits of different versions of football. Shouting leads to shoving, shoving leads to a looping overhand right, and the guy blocks, traps the arm, and throws the drunk to the ground. He may not have a self defense claim; he was participating in the argument and the shoving match, and had plenty of opportunities to simply leave. It might be something on the order of imperfect self defense, since he didn't throw the first punch. It might go down as mutual combat.

Most of the situations run somewhere in between; maybe someone else can paint a few others that we can examine. The general idea is that we are a culture of laws and a certain level of civility, and we can resolve issues without killing each other -- or even simply pummeling each other into oblivion. And that, if we're attacked, we don't get carte blanche to mete justice out; we can protect ourselves, but are supposed to leave justice to the system.

Theres too much gray area to say it so black and white like that.

Take for instance your hypothetical bar-room incident. Let's say that instead of standing there and pushing back, the guy turns his back to the guy to leave and the guy attacks him from behind? What then? Does he have a claim for self defense if he were to turn around then and take a swing? Or, if he is still conscious and able to walk, is he legally obligated to continue trying to leave since he has the ability?

In my opinion theres too much to consider. You have no way to know what the other guys intentions are. Is he knocking you out to rob you blind? Is he trying to knock you out just for laughs? Is it a "mutually involved" fight that the guy only intends to win? Or is he attempting to kill you? No matter the context, I just don't see how anyone can know. So while you're trying to escape, the guy could either decide not to pursue or he could come after you.

Thats why I prefer a stand your ground law. Sure, there is such a thing as taking it too far. Even if there is reasonable suspicion that an assailant intends to take your life there is nothing saying you have to take theirs to prevent the loss of your own. You don't always have to kill to save your own life.

On that note, I shouldn't have to consider leaving anywhere if I am not doing anything wrong. If I am out enjoying a night with my wife or kids at the bowling alley and someone attacks me or my wife, I shouldnt be expected to get up and leave. It boggles my mind. I should be allowed to protect myself and my family without concern of legal action being taken against me, and I shouldn't have to face legal action for standing my ground. Of course that all changes if I invite the violence or I go overboard and knock the guy out and decide to choke him to death after he falls to the floor already unconscious. Theres a clear and easily discernible boundary between self defense and premeditated murder.

Hate to play devils advocate here, just curious what your thoughts are on that.


____________________________

"Knowledge speaks, but wisdom listens."

 

[jks9199]

There is a problem when it comes to defining lethal force, since just about anything can kill so anything can be considered lethal force if the person on the receiving end dies. Tasers are generally not supposed to kill, they're just supposed to knock a person out but there are cases where people have been killed by tasers. A person could choke on pepper spray and die as unlikely as that is, or a person can be killed with a single punch although that's rare. Take your example of the guy being clobbered from behind and he hits his attacker with a spinning backfist. Lets say the attacker dies from the spinning backfist. Although chances are that won't happen, it can happen. Thus the defender used "lethal force" even if he didn't intend to kill his attacker. Just about anything can be called lethal force since just about anything can kill, pepper spray, tasers, bare hands, they can all kill.

A more complete definition would be that lethal force is that force which is reasonably likely to cause serious bodily injury or death. Serious bodily injury is stuff like maiming, significant broken bones, blinding... If you think "life altering injury", you're on the right track. That certainly includes a lot of things that people don't ordinarily associate with being lethal force -- like baseball bats or automobiles -- but it's a pretty workable concept in practice.

As far as I know, there are no deaths directly attributed to the Taser. Pretty much every Taser related death has been paired with excited delirium or some pre-existing condition. Or people using them unwisely, like Tasing a guy standing on a ledge. (The Taser didn't kill him... the sudden stop when he fell did.)

Now... let's look at that guy falling down after you punch him, and he dies from a freak landing just right at the curb to snap the neck or just lands just right on a rock. There was a case a few years ago where an off-duty cop was charged with murder when he punched someone and they fell just right, cracking their skull. (At least, that's how I recall it. I couldn't find any links just now.) Generally speaking, you take your victim as you find them. Your defense at trial is going to be that your punch was a reasonable level of force in response to what you were facing, and there was no reasonable way to foresee the outcome would be so serious. Get a good criminal defense attorney, fast -- and line up a good civil litigator, too.

 

[jks9199]

In looking some things up -- I came across this roundtable discussion: Self Defense & The Law

It's worth a read.

 

[Chris Parker]

I don't believe I was trying to give any kind of "beat down" or pretend I know more about the law than anyone else. All I tried to do was join in on the conversation with the laws that I read as I understood them. If I didn't grasp them completely, then naturally that is fine to say "you misunderstood that law." I'm humble enough to admit when I misunderstood something. However, I don't see the need to take it to a level of insulting someone. But hey, to each their own. If that's how some people get their kicks, who am I to take that joy away from them?

As for trying to phrase it in another way...nah, man, I'm good.

Hi,

I've watched the way the last few pages have gone, and I really do think it's simply a case of your not being anywhere near as familiar with the realities of self defence law as you believe, as well as other areas, and, as a result, are misunderstanding what you're being told. The above quote has another good example, where you seem to believe that JKS suggested you were trying to give him a "beat down"... that's not what he was talking about. You spoke about "pummel(ling) someone into oblivion"... which is not anything to do with self defence. In fact, it's quite simply a case of assault... and most often is seen as part of social violence. One common application of it is what Rory Miller described as an "educational beat down", where a beating is issued in order to instil a "lesson" (this is our turf, don't come round here, don't mess with my girl, you owe me money, etc). As a result, the beating is often to an extreme... which matches your description.

In other words, when JKS mentioned an "educational beat down", he was saying that that was what you were describing, not what you were doing. He wasn't insulting you at all... but he was using terminology you might not be familiar with.

And, to that end, I might suggest taking a moment when you read something that you perceive as an insult, and see if there's a possible way you could be misreading it... more often than not, it could be the case.

 

[K-man]

On that note, I shouldn't have to consider leaving anywhere if I am not doing anything wrong. If I am out enjoying a night with my wife or kids at the bowling alley and someone attacks me or my wife, I shouldnt be expected to get up and leave. It boggles my mind. I should be allowed to protect myself and my family without concern of legal action being taken against me, and I shouldn't have to face legal action for standing my ground. Of course that all changes if I invite the violence or I go overboard and knock the guy out and decide to choke him to death after he falls to the floor already unconscious. Theres a clear and easily discernible boundary between self defense and premeditated murder.

Hate to play devils advocate here, just curious what your thoughts are on that.

Of course you can take what ever action you deem appropriate. If it ends up in court you need to justify your actions. Simple.

Now... let's look at that guy falling down after you punch him, and he dies from a freak landing just right at the curb to snap the neck or just lands just right on a rock. There was a case a few years ago where an off-duty cop was charged with murder when he punched someone and they fell just right, cracking their skull. (At least, that's how I recall it. I couldn't find any links just now.) Generally speaking, you take your victim as you find them. Your defense at trial is going to be that your punch was a reasonable level of force in response to what you were facing, and there was no reasonable way to foresee the outcome would be so serious. Get a good criminal defense attorney, fast -- and line up a good civil litigator, too.

Exactly.

In Australia there have been 90 deaths from people hitting their heads on the ground since 2000, which is why our SD laws have become much more restrictive. People are getting sick and tired of street violence.
:asian:

 

[PhotonGuy]

On that note, I shouldn't have to consider leaving anywhere if I am not doing anything wrong. If I am out enjoying a night with my wife or kids at the bowling alley and someone attacks me or my wife, I shouldnt be expected to get up and leave. It boggles my mind. I should be allowed to protect myself and my family without concern of legal action being taken against me, and I shouldn't have to face legal action for standing my ground. Of course that all changes if I invite the violence or I go overboard and knock the guy out and decide to choke him to death after he falls to the floor already unconscious. Theres a clear and easily discernible boundary between self defense and premeditated murder.

Exactly. Why punish somebody for refusing to be a victim? That's messed up.

 

[Tgace]

Armchair lawyering is dangerous...no law says that if you "are attacked" you cannot use force to defend yourself. In most States (like mine) you have a duty to retreat if you can do so IN COMPLETE SAFETY before using DEADLY FORCE. Which has been explained several times here already.

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[PhotonGuy]

Armchair lawyering is dangerous...no law says that if you "are attacked" you cannot use force to defend yourself. In most States (like mine) you have a duty to retreat if you can do so IN COMPLETE SAFETY before using DEADLY FORCE. Which has been explained several times here already.

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Deadly force. As I pointed out that can be open to debate. Just about anything can kill. Also, duty to retreat would apply depending on where you are. In most places, if you're in your own home you don't have to retreat and you're allowed to use deadly force against an intruder, its called the castle doctrine. So, there are all these factors to take into consideration.

 

[stonewall1350]

Well obviously state dependent. So I live in Florida. And we have the now infamous stand your ground law. I don't have the link to that legislation, but florida 790s deal with firearms and weapons and what you can and cannot possess.

An interesting bit about our law that I love is that ALL firearms legislation is statewide. Cities CANNOT legally pass any ordinance to further restrict firearms, and if they do so any enforcing officer can be fined...as can the official/s who enacted the legislation. That will be in the 790s statutes.


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