New York restaurant supply owner blows away 2 of 4 robbers.

[gorfle]

http://www.nydailynews.com/news/ny_crime/2009/08/13/2009-08-13_harlem_biz_owner.html

"A shotgun-wielding owner of a Harlem restaurant-supply company blasted two robbers to death and wounded two others on Thursday when he caught them pistol-whipping his employee, police said."

The stickup crew - three 21-year-olds and a 29-year-old - came prepared with a pistol and plastic handcuffs. They tried to tie up two of Augusto's employees - a 35-year-old man and his 47-year-old female co-worker, said Deputy Police Commissioner Paul Browne.

"The male employee started to struggle, and then, as he did that, the perp with the gun struck him once in the head," Browne said.

"... That's when the owner opened fire with the shotgun."

As the bandits bolted from the store, Augusto squeezed off three blasts from the pistol-grip shotgun from 20 to 30 feet away from the pistol-whipped employee.

He was deadly accurate. The four bandits - who were all from Manhattan - were hit.

Two of the robbers were struck in the back. One, identified as James Morgan, dropped dead inside the store among the sparkling gas stoves, a pistol near his body."

Even though he shot them in the back as they were running away, I still find myself rooting for the store owner.

[billyoc]

1. I hope none of the store inventory was damaged by all that buckshot.

[spin]

2. K&R...Hope the store owner doesn't face charges. (n/t)

[Mz Pip]

3. At the end of the article

it said that if he's charged with anything it won't be much. It's hard to have much sympathy for the robbers.

[iverglas]

11. nobody's asking you to have sympathy for anyone

If you condone shooting people who are running away in the back, that's just outright contempt for human rights.

[Mz Pip]

12. If you have been a victim

of a violent crime where someone was murdered and can honestly say you would not have pulled the trigger given the chance then you are living in some fool's paradise. When seconds are involved I doubt the victim is really spending a lot of time trying to evaluate whether or not the perpetrators may or may not turn around and start shooting.

[iverglas]

14. if you think you can tell me what I am and what I would do

you are wrong.

If the individual who killed two people here has an explanation for what he did, there are venues for that explanation to be offered. That's what "self-defence" is all about: it's an explanation for using violence against another person, and the individual's state of mind is one of the factors considered. I haven't heard any such explanation, and in any event I am neither a prosecutor deciding whether to prosecute nor a judge/jury deciding whether to convict.

[Tejas]

86. CoC prevents it.

"and in any event I am neither a prosecutor deciding whether to prosecute nor a judge/jury deciding whether to convict."


Ya sure fooled me :rofl:

[gorfle]

16. Or just contempt for armed robbers.

If you condone shooting people who are running away in the back, that's just outright contempt for human rights.

Or just contempt for armed robbers.

[The Doctor.]

33. While I agree with the sentiment, you weren't the one the attackers could have harmed.

Tactical situations are never delineated into 'if=>then' reality.

'"IF" They are running away, "THEN" they will not regroup and kill me' is the sort of logic that really isn't available to people in these situations.

[paulsby]

35. not really. you are ignorant of case law at least

it IS legal to shoot people in the back in numerous circumstances. all people are limited by constitutional case law. some states can be more restrictive than that.

in my state (and under the federal standard) it is definitely not illegal to shoot somebody inthe back/as they are running away.

mercer island cops did this to a fleeing bank robber recently. not much of an issue. he was armed, and they gave a verbal warning (the warning is preferred but not required)

most people have not read the relevant case law. the key case is tennessee vs. garner. there is this general mythology, mostly borne from tv dramas and such that shooting people in the back is not authorized. it CAN be. it depends on the circ's.

[iverglas]

51. well, that was a bust, wasn't it?

Any RELEVANT case law you'd like to cite?

I mean, if you're going to call someone ignorant, it's usually thought wise to produce that of which they are ignorant.

Shooting someone in the back WHERE I AM, which would be a part of the civilized world, is not permitted. The one and only possible exception might be:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

... When protected

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
(e) the flight cannot be prevented by reasonable means in a less violent manner.

Just in case anybody's interested in how the civilized world does things.

[paulsby]

55. you are wrong

how surprising. read your own cite, specifically sections (d) and (e).

you have cited nothing that says it is always illegal to shoot people in the back

it depends on facts and circumstannces. so, if you are so certain, please cite case law that says it is always illegal to shoot somebody in the back. you can't. there is no such law. in canada OR the US

here's a hint. even your cite references "future..." death of grievous bodily harm.

WA state law has a similar reference, as does the court precedent in tennessee v. garner.

there is no law that prohibits shooting people in the back, iow. iow, i stand by that statement.

if you want to prove it wrong, FIND THE LAW that says "it is illegal to shoot somebody in the back"

there is no such law.

in many cases, shooting a person in the back is manslaughter, in others it is murder, in others it is justifiable homicide.

recently, (not far from where i live) mercer island police shot a man in the back. it was not criminal. because the facts and circumstances justified it.

btw, i can;'t cite a law saying it is legal to (sometimes) shoot people in the back any more than i can cite a law saying blue shirts are legal in the city of vancouver, BC. that's because laws generally describe what is prohibited, not what is allowed.

so cite me where in US case law, it is determined to be illegal to shoot somebody in the back. you will realize (if you have a brain) when reviewing deadly force (both by cops and civilians) that sometimes it is justified, sometimes it isn't

[iverglas]

58. open mouth, shove foot as far as possible down gullet

I quoted you the EXCEPTIONS to the general rule.

Forgive me. I know you couldn't be expected to find such things yourself ... especially not in the dozens of posts right here at DU where I have copied and pasted them over the last better part of a decade ...


http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html

Here's the bit that came in the middle of those other two bits:

When not protected

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) <the administration or enforcement of the law> in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

I told you that what I posted was the only conceivable exception to the general rule. You are saying I lied?


if you want to prove it wrong, FIND THE LAW that says "it is illegal to shoot somebody in the back"
there is no such law.

There SURE AS FUCK is, in my law.

Defence of Person

Self-defence against unprovoked assault

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

How ya doin'?

Extent of justification

34. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

I'll just bet you can think of a situation in which "shooting someone in the back" would fall within those parameters.

Well, I can. The justification commonly known as "battered wife syndrome", which takes into account that what a person suffering from it may reasonably apprehend, and what may be reasonable grounds for such a person's belief, may differ from what is the case for other individuals. But to my knowledge, such a justification will not amount to a complete "defence" to the charge, but will lead to a reduced charge.


so cite me where in US case law, it is determined to be illegal to shoot somebody in the back. you will realize (if you have a brain) when reviewing deadly force (both by cops and civilians) that sometimes it is justified, sometimes it isn't

Hey, I don't give a fuck about US case law.

And I DID NOT SAY that there were no exceptions to the general "rule" that shooting someone in the back will not qualify under the self-defence exception to the prohibition on the use of force. I produced an exception, for fuck's sake.


it depends on facts and circumstannces. so, if you are so certain, please cite case law that says it is always illegal to shoot somebody in the back. you can't. there is no such law. in canada OR the US

For someone so utterly ignorant to be so mouthy is just sad.

[backwoodsbob]

90. if you dont give a fuck about US case law why are you here? NT

[iverglas]

92. Well, I'll answer you that

if you'll tell me why you aren't out back in the woods chopping something down/up.

Did ya notice how my first comment here related to HUMAN RIGHTS?

Don't you got none of them where you're at?

US case law doesn't determine the content of human rights.

There ya go.

[Tejas]

103. "US case law doesn't determine the content of human rights." - the wrong is strong with this one

[iverglas]

105. stop, you're killing me

Please do elaborate. It might be worth taking home and framing too.

You'll have to excuse me while I finish a job due in 1:45.

[Tejas]

87. "Shooting someone in the back WHERE I AM" (which is Canada, so......?)

But since you asked:

"Any RELEVANT case law you'd like to cite?'



US case law? Sure, got plenty.

[iverglas]

93. HERE YOU ALL GO! READ ALL ABOUT IT! STEP RIGHT UP!

THIS IS WHAT I POSTED. I did not post anything about case law, from hickstate USA or anywhere else.

Take a nice big breath. It's a long one. Here it is.


If you condone shooting
people who are running away
in the back,
that's just outright contempt
for human rights.



And if any of you think that you have anything to say to me about human rights, you feel right free.



WAAAH, it's legal to shoot people in the back in Texas!!!!!

is not responsive or even remotely relevant to what I said.

[iverglas]

59. and now, if you would,

please explain where there is anything in this post of yours that is in any way responsive to what I said in the post you replied to:

If you condone shooting people who are running away
in the back, that's just outright contempt for human rights.

Nothing to do with anybody's legal or illegal, or anybody's fucking case law, sweetie.

[Tejas]

89. 30rd mag in the back of a retreating rapist sounds great to me.

[iverglas]

94. and you behind bars

where you would then belong is a tasty treat I wouldn't be able to resist framing and hanging over my desk.


Do you find that you are raped often?

Perhaps it's the company you keep ...

[Tejas]

101. Nice edit, be glad, be VERY glad that you did.

[iverglas]

104. you liked it?

Huh. In that less than a minute after I posted, you read.


This was the edit. I'm not sure what you like so much about it, but you can enjoy it again.

This was THE edit. The one and only edit. If you want to say I'm lying and I changed something else, I invite you to do that.

This was the edit:



Do you find that you are raped often?

Perhaps it's the company you keep ...




Here you go. I'm editing something here. I typed "else" "eles". Fixed it.

[Name removed]

110. Deleted message

Message removed by moderator. Click here to review the message board rules.

[iverglas]

113. TPaine7 - your attentions are needed!

The psychosis is strong in this one.

Do you think so?? Shall I guess how you would reply to:

30rd mag in the back of a retreating rapist sounds great to me.

Shooting someone in the back gets you put behind bars in any civilized place.

Mr. Tejas fantasizing about shooting "rapists" (none anywhere else in this thread that I noticed) -- isn't that just a little odd?

I could only wonder how many times he might have done that ... fantasized about shooting "rapists" in the back ... and why ...


Maybe you have theories?

[one-eyed fat man]

72. and???

fucking robbing people at gunpoint is not contemptible of human rights???????

Pistol-whipping people who are bound and gagged is what??? Extreme hockey???

The miserable bastards only got what they had in mind for the store owner and his employees. They weren't shoplifting a loaf of bread to feed their orphan children. They were not victims of the recession. They were career criminals whose careers were unambiguously ended in the only way they understood.

[iverglas]

73. eh???

fucking robbing people at gunpoint is not contemptible of human rights???????

Did someone here approve of robbing people at gunpoint???????????????????????????????

Lemme at 'em.


They were career criminals whose careers were unambiguously ended in the only way they understood.

And you have unambiguously told us exactly what you are.

[backwoodsbob]

88. I dont have sympathy for them

maybe if we make it clear that robbery=death people will stop robbing?

[iverglas]

95. and I don't give a flying fuck

Was that not clear?

If you cut your arm off out in those backwoods and bled to death, I wouldn't have any sympathy for you.

Is it okay to shoot you in the back now?

[dixiegrrrrl]

4. Even better, see what the pistol whipped employee did.

"The furious employee who had been pistol-whipped ran out of the store and leaned over the mortally wounded Footmon, cursing at him, witnesses said.

The worker went back into the store and dragged Morgan's body onto the sidewalk, yelling at him and kicking him, witnesses said.

"He stood over the body cursing him and shaking him, even though he was dead," said Matthew Viane, 38, who lives in the neighborhood. "He was screaming at him and stomping him. "He said, 'You were going to kill me? Now you're dead!'"

Viane said he overheard the 35-year-old employee - whom cops took away from the scene in handcuffs, but later released - thanking Augusto.
"Gus, you saved my life. You saved my life," Viane quoted the worker as saying. "

[iverglas]

5. and this needed a new thread started 5 hours after the existing one

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x247336

about the same exact thing because ...?

Blinded by blood lust?


typo fixed

[ProgressiveProfessor]

6. Yes, its rare to get such good news all at once

[iverglas]

8. even rarer to read what you reply to, I guess

Or does one ordinarily refer to one thing happening "all at once"?

[gorfle]

17. I missed it because...

Of a poor summary in the title.

[rd_kent]

43. "Blinded by blood lust?" Ahh, I love the smell of hyperbole in the morning.

[jody]

7. When attacked by a criminal and seconds count, police are only minutes or hours away. Just another

law-abiding citizen exercising his pre-existing or inalienable right to self-defense.

[JonQ]

9. Sad thing is the store owner will likely be penalized

in a rational society he'd be thanked for doing a service to the community.

[Katya Mullethov]

25. He'll likely be charged with a misdemeanor

Of having an unlicensed gun . And while it will probably be just a fine he'll never get a license for any gun again . His papers vill not be een order . I say fuck em . He didnt have one the first time , no need to grovel for one now .

[paulsby]

36. i will bet you he will not be penalized.

but we will have to wait to see. again, there is this myth that is illegal to shoot a fleeing person (or in many cases, the person isn't fleeing but is retreating to a better tactical position) in the back. it is NOT.

i teach deadly force law to officers, and am a firearms instructor. in brief, it depends on the facts and circumstances. it is certainly possible that in some state, it is never appropriate to shoot somebody in the back, since states can be MORE restrictive than federal constitutional guidelines. however , at least under the fed guidelines (and in several states i am aware of case law in, including my own), there is nothing ipso facto illegal about shooting a person in the back and/or while they are running away. given certian circumstances, it is entirely legal.

[ProgressiveProfessor]

48. Looks like he won't be...shotguns have to be registered but do not require a permit

Registration was at the time of sale 20 years ago. Update here: http://www.nydailynews.com/news/ny_crime/2009/08/16/2009-08-16_gus_was_well_within_the_law_sez_top_cop_kelly.html

the comments are telling...

[iverglas]

10. if this is accurate

As the bandits bolted from the store, Augusto squeezed off three blasts from the pistol-grip shotgun ...
The four bandits - who were all from Manhattan - were hit.
Two of the robbers were struck in the back. One, identified as James Morgan, dropped dead ...

then it appears he committed murder. Intentional killing of a human being.

Would he have a justification/excuse? Hard to think of one for shooting someone who is running away in the back.

But yay, team.

[gorfle]

18. I think he had justification.

I think what he did was justified, even if he wasn't in immediate danger, which is debatable, since the criminals had already demonstrated that they were armed and willing to use violence.

Even if they were running away, they got what they deserved. They came in ready to rob and deal out violence, no hearts should be broken that they got it back in return.

Instant karma, if you ask me.

I have zero sympathy for people who die in the commission of robbery and/or assault, even if half-way through their deed they chicken out and start to run away. Should have thought about the consequences before starting the crime.

[iverglas]

19. "they got what they deserved"

Yes, and that's your opinion, and you're entitled to it, and it's a great big lovely opinion it is, isn't it?

I have zero sympathy for people who die in the commission of robbery and/or assault

Lather, rinse, repeat.

I have zero sympathy for a spouse-beating, child-beating, dog-beating monster who gets run over by a drunk driver.

Shall we give the drunk driver a medal, or charge them with drunk driving?

[gorfle]

20. Absolutely!

I have zero sympathy for a spouse-beating, child-beating, dog-beating monster who gets run over by a drunk driver.

If a drunk driver ran over someone who just minutes before had been robbing and assaulting them, I think I'd be willing to overlook the drunk driving.

A net good occurred out of a bad situation. What more could you want?

[iverglas]

21. your ability to understand / desire to be honest

Which one is deficient?

[gorfle]

22. Neither.

.

[TPaine7]

24. Deleted

[iverglas]

26. ha!

Good demonstration. We still can't be sure which it is, but we know it's one of 'em.

Some of us even have our theories ...

[TPaine7]

23. Brilliant answer!

:applause:

Indeed, if a drunk person drove a car into a man in order to protect an abused family under threat of death or grave bodily harm--and if he only drove the car for that purpose--he would deserve a medal and a parade. For clear-headed heroism while under the influence.

I am sure there's an idiot with a badge somewhere who would arrest him for drunk driving under those circumstances. And there are probably idiots in the populace who would support it. Fortunately, it would be hard to get 12 idiots together in a room to convict him.

[Matt 6_5]

84. Actually they 'deserved' to have their legs blown off and left to die s l o w l y

...

[iverglas]

96. was that a countdown I saw you starting there?

[Katya Mullethov]

29. He gave them a choice

//////////
I told them there wasn't any money. 'Take your gun, put it in your pocket, and go home.' They had a chance to leave," Augusto said.

But they didn't listen.

"I did what I had to do," he said. "It wasn't my choice; it was their choice."
/////////

[iverglas]

52. well ...

"It wasn't my choice; it was their choice."

Automatism is a long-standing common law defence. Is he taking a shot at that, do you suppose??

Dang, can't find anything about my favourite law school case on that one, albeit a civil case. Lorry driver heads straight for brick wall, but swerves at last minute. Claims to have been acting on orders from headquarters. Turns out to have syphilis of brain.

[happyslug]

30. No, Manslaughter only

Remember the common law rule is that if you make an mistake as to law as to self-defense you are guilty of Manslaughter not Murder. I know it is a technical difference, but it is a difference.

The only issue is was it self-defense under New York Law? If he shot the robbers as they ran out of the store, that is Manslaughter, if he shot them while in the Store and if still under threat from the robbers guns then it is self-defense. Now if the thieves had stopped and turned on the Store owner then it be self-defense again, but the burden is on the Shooter not the state and that is a huge burden of proof to produce.

[paulsby]

40. which is why New York state sucks :)

if what you say is true. in my state (WA) the burden is on the state to prove it WASN'T self defense, not on the defendant to prove it was.

yet another reason why i enjoy living in WA state.

[happyslug]

42. I would advise you to talk to a Lawyer who practices in WA

The Common Law Rule is the rule in all states that I know of, i.e. Self -Defense is a "Positive Defense" i.e. the burden of proof is on the Shooter NOT the prosecution. This also seems to be the rule in the State of Washington:

Homicide is also justifiable when committed either:

(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.

http://apps.leg.wa.gov/RCW/default.aspx?cite=9A.16.050

Manslaughter is defined in two degrees (Unlike most states which calls the First degree, Voluntary, and the Second Involuntary Manslaughter):

(1) A person is guilty of manslaughter in the first degree when:
(a) He recklessly causes the death of another person; ....

http://apps.leg.wa.gov/RCW/default.aspx?cite=9A.32.060
(1) A person is guilty of manslaughter in the second degree when, with criminal negligence, he causes the death of another person....
http://apps.leg.wa.gov/RCW/default.aspx?cite=9A.32.070

Now the burden is on the State to show one of the two above situation, but look at manslaughter in the second degree, all the state has to prove is "Criminal Negligence", no other intent is needed. "Criminal Negligence" is NOT defined in the Statute (or I can NOT find it, I just did a quick review of Washington State's law) thus we must look to the Common Law. This is recognized by the The State of Washington in the following provision:

Common law to supplement statute.

The provisions of the common law relating to the commission of crime and the punishment thereof, insofar as not inconsistent with the Constitution and statutes of this state, shall supplement all penal statutes of this state and all persons offending against the same shall be tried in the courts of this state having jurisdiction of the offense.
http://apps.leg.wa.gov/RCW/default.aspx?cite=9A.04.060

Given the above, my view on the Laws of the State of Washington is that it tracks every other state in the Union. Self Defense is permitted, but the burden of proving it is on the person CLAIMING self defense NOT the state to disprove Self Defense. It was at least criminal negligence to shoot the fleeing robbers, and as such shooting them is Manslaughter.

Now the states do split on the "Retreat to the Wall" doctrine, some state require it, others do not. Furthermore, even the "Castle Doctrine" varies from state to state, but most, like Washington State applies it ONLY inside your home but that NOT what is alleged in this case where the shooting of two of the robbers was done outside on the Street as they fled.

Remember the issue is the two criminals shot outside of the business. The one killed inside the business found with a pistol in his hands will be clearly self defense. That is an easy defense, he had a gun, the shooter had the right to expect to get shot by that gun and thus self-defense kicks in, even in New York State.

The issue of Manslaughter relates to the two criminals who subsequently fled and according to the story, where shot OUTSIDE the business. Those, again based on what has been reported in the story, were fleeing and thus no longer a threat to the Shooter. As no longer a threat self defense can NOT kick in even under the above Washington State Statutes.

The old Common Law Rule that one could shoot escaping felons was struck down as unconstitutional by the US Supreme Court decades ago, so even that defense is no longer permitted (and the US Supreme Court case involved a Police Officer NOT a Civilian and still the Court struck that Common Law Defense down).

One can only use deadly force to prevent an act of violence and then only to the extend needed to stop that act. Here chasing after the robbers as they ran down the street was NOT self-defense and as such shooting the fleeing robbers was a criminal act, that upon their deaths, became Manslaughter even under Washington Law. The only real question, if this was a State of Washington Case as oppose to a New York State Case, would be was the act of the shooter "Reckless"? If yes, the shooter is Guilty of Manslaughter of the First Degrees, if not he is guilty of the Manslaughter of the Second Degree.

I did NOT look into New York State Law but I suspect it is similar to the Washington State Law (Where I do practice, Pennsylvania we retain the names of Voluntary and Involuntary Manslaughter instead of giving then different class as does Washington State). Almost all states changed their State Criminal Codes after the American Legal Institute (ALI) adopted a "Model Criminal Code" in 1962. While few state adopted the "Model Criminal Code" during that time period, it influenced is seen in over 2/3rds of the states that modified their criminal statutes at that time,

For more on the "Model Criminal Code" see:
http://en.wikipedia.org/wiki/Model_Penal_Code
http://74.125.93.132/search?q=cache:Rg51bCqZhDsJ:www.law.upenn.edu/fac/phrobins/intromodpencode.pdf+%22Model+Penal+Code%22&hl=en&gl=us&ct=clnk&cd=4

Now the biggest attack on the "Model Criminal Code" was its punishments were to weak, almost all states increased them drastically when the above modification of codification of their Criminal Statures were done, and increased them again and again over the last 47 years, but it is the closest thing to a National Criminal Code we have in the US.

Anyway, given the above your statement that Self Defense MUST be disproved in Washington State is false. The burden is still on the defendant (In this case the Shop owner/Shooter) to show he acted within the law, all the prosecution has to show is these two robbers were killed as their ran away. At that point they were no longer a threat to anyone and thus you can NOT claim Self Defense except to mitigate the punishment (i.e. This is Manslaughter NOT Murder).

[paulsby]

49. sorry, but no...

in your entire post, you failed to even MENTION state v. miller

"When a defendant raises the issue of self-defense, the State bears the burden of proving the absence of self-defense beyond a reasonable doubt. State v. Miller, 89 Wn. App. 364, 367, 949 P.2d 82 1 (1997). "

it's really that simple. in WA state, the burden is on the state to DISPROVE self -defense, not on the defendant to prove it.

feel free to look that up.

[iverglas]

56. perhaps we have a failure to understand the distinction

between an evidentiary burden and the legal burden of proof.

Such things often occur with legal autodidacts like our happyslug.

"When a defendant raises the issue of self-defense, the State bears the burden of proving the absence of self-defense beyond a reasonable doubt"

(The state has no burden of proving absence of self-defence unless the accused first asserts it.)

http://en.wikipedia.org/wiki/Burden_of_proof

There are generally two broad types of burdens:

* A "legal burden" or a "burden of persuasion" is an obligation that remains on a single party for the duration of the claim. Once the burden has been entirely discharged to the satisfaction of the trier of fact, the party carrying the burden will succeed in its claim. For example, the presumption of innocence places a legal burden upon the prosecution to prove all elements of the offence (generally beyond a reasonable doubt) and to disprove all the defences except for affirmative defenses in which the proof of nonexistence of all affirmative defence(s) is not constitutionally required of the prosecution.

* An "evidentiary burden" or "burden of leading evidence" is an obligation that shifts between parties over the course of the hearing or trial. A party may submit evidence that the court will consider prima facie evidence of some state of affairs. This creates an evidentiary burden upon the opposing party to present evidence to refute the presumption.

An accused has an evidentiary burden, to lead evidence (or find evidence in the prosecution's case) that raises the issue of self-defence. The prosecution always has the burden of proving all elements of the offence beyond a reasonable doubt, and so must persuade the trier of fact that the accused does not meet the self-defence standard.


As my illustrious cousin said:

http://www.justis.com/data-coverage/iclr-s3540029.aspx

It is true as stated by the Court of Appeal that there is apparent authority for the law as laid down by the learned judge. But your Lordships' House has had the advantage of a prolonged and exhaustive inquiry dealing with the matter in debate from the earliest times, an advantage which was not shared by either of the Courts below. Indeed your Lordships were referred to legal propositions dating as far back as the reign of King Canute (994-1035). But I do not think it is necessary for the purpose of this opinion to go as far back as that. Rather would I invite your Lordships to begin by considering the proposition of law which is contained in Foster's Crown Law, written in 1762, and which appears to be the foundation for the law as laid down by the learned judge in this case. It must be remembered that Sir Michael Foster, although a distinguished judge, is for this purpose to be regarded as a text-book writer, for he did not lay down the doctrine in any case before him, but in an article which is described as the "Introduction to the Discourse of Homicide." In the folio edition, published at Oxford at the Clarendon Press in 1762, at p. 255, he states: "In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, until the contrary appeareth. And very right it is, that the law should so presume. The defendant in this instance standeth upon just the same foot that every other defendant doth: the matters tending to justify, excuse, or alleviate, must appear in evidence before he can avail himself of them."

... The question arises, Is that statement correct law? Is it correct to say, and does Sir Michael Foster mean to lay down, that there may arise in the course of a criminal trial a situation at which it is incumbent upon the accused to prove his innocence? To begin with, if that is what Sir Michael Foster meant, there is no previous authority for his proposition, and I am confirmed in this opinion by the fact that in all the text-books no earlier authority is cited for it. ...

... Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i.) intentional and (ii.) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted.

[paulsby]

57. which of course STILL ignores

the relveant case and instead only speaks of generalities.

how ironic. this is classic iverglas... ignore the issue, obfuscate, and cluck away... but don't address the issue, when she knows she is wrong.

i cited the case. in WA, the burden is on the state to prove it wasn't self defense.

did she disprove that? of course not

i've been in a state where the burden WASN'T on the state (like, apparently NY according to the OP), but was on the defendant.

i prefer WA state's setup, since it more strongly recognizes the right of self defense.

[iverglas]

60. jesus christ

happyslug was wrong.

And I'm sure you understood what I posted about as much as any slug would.

[happyslug]

69. I try to stay out of the Gun Dungeon, to many people NOT willing to listen.

A debate requires both side to provide their side to the argument. Here we have a person who wants to hang his hat on one case, even if that case does NOT completely support his argument. I have read the case he cited and copied it below on another part of this thread, all Miller holds is once evidence exist to support a claim of self defense then the burden is on the prosecution to disprove that defense. The law you cite holds a similar position, no intent no conviction of a crime that requires intent (I do almost all civil law and in such litigation intent is rarely an issue).

Anyway, that is one of the problems with the Gun Dungeon, to many people NOT wanting to truly discuss the issue, instead want to yell their position tell the other side shuts up. That is not a debate that intimidation and one of the reason I try to stay out of the Gun Dungeon. When I go in the Gun Dungeon I try to bring in supporting facts for the point I am trying to make. I will disregard what turns out to be bad or wrong, see the good points other people are making and retain the points I have made that are good and supported by the facts (Which in the debate on Gun Control case also means the law and history). I have found to many people in the Gun Dungeon who do NOT want to look as facts, just one or two (at most) that support their position. Thus I tend to stay out of it, it was where I first went to when I joined DU several years ago but I rarely go they now except if it hits a point I want to make or I believe people should hear. Other then that I stay out of the Gun Dungeon.

[iverglas]

70. I'm sorry, but

I find your posts to consist mainly of bizarre collections of thoughts tied together only by a thread in your head, written in a style that makes them incomprehensible even to me -- and I have degrees in law and languages, am expert at reasoning by analogy, a skill honed when I have taught both, and tend to be pretty good at extracting meaning from most anything about law written by most anybody whose first language isn't English. I'm used to the academic French style in which words are assigned meanings by the author for which there are no external referrents, for example, and the whole point seems to be that if you don't already have the secret decoder ring you are not wanted at the party.

Yours often just defeat me.

[happyslug]

67. autodidacts??? I graduated from Law School

Furthermore I do NOT remember saying anything about "When a defendant raises the issue of self-defense, the State bears the burden of proving the absence of self-defense beyond a reasonable doubt", all I said was the burden of showing Self Defense is on the Defendant NOT the State. That is the rule in my home state of Pennsylvania. I did read the case he cites, and that case does mention that once evidence to support a claim of self defense is produced (and that has to be something more then someone claiming self defense) then the burden shifts to the Prosecution to disprove self defense. I further said there is such evidence as to the robber killed in the store, but not as to the other two robbers, killed while fleeing the store. We had a case like that in Pennsylvania about 10-15 years ago, and the shooter ended up in jail on a manslaughter sentence do to the fact he CHASED the Robbers and then shot them.

Now I might have said "When a defendant raises the issue of self-defense, the State bears the burden of proving the absence of self-defense beyond a reasonable doubt" but as I re-read my thread I did NOT see such a statement. My comments only reflected a reading of the underlying statutes, as I said in my thread my research was brief just to point out that the difference is NOT that great between the State of Washington and New York State. I have read the case he cites, but that case only reflects the view of the State of Washington view that if evidence exists to support a claim of Self Defense, then the burden in on the state to show a lack of Self Defense. Not that much different, significant in the right set of facts, but in most cases unimportant.

[iverglas]

68. mm hmm

Furthermore I do NOT remember saying anything about "When a defendant raises the issue of self-defense, the State bears the burden of proving the absence of self-defense beyond a reasonable doubt"

Uh, no, paulsby did, post 49. He was correct. That was my point. My point seems to have disappeared into the haze of hostility.


all I said was the burden of showing Self Defense is on the Defendant NOT the State

And that's where you disagree with any law I'm familiar with.

The accused has an EVIDENTIARY burden, of introducing some evidence to support a self-defence allegation (or relying on evidence already called by the prosecution).

The accused does NOT have the burden of SHOWING self-defence. The accused has the burden of introducing evidence that is consistent with self-defence.

http://www.google.ca/#q=%22evidence+consistent+with+self-defense%22&hl=en&safe=off&num=30&filter=0&fp=6393c88910a58a95

Results 1 - 7 of 7 for "evidence consistent with self-defense".

A random example:

http://www.mssc.state.ms.us/Images/Opinions/Conv4300.pdf

There was certainly substantial evidence presented by the State that made Bryant's self- defense claims appear less than credible. Had the jury believed that evidence, it could quite reasonably have concluded that Williams's presence amounted to nothing more than an aggravation to Bryant and that Williams did not pose a legitimate threat of imminent serious bodily harm to Bryant or anyone else. In that view, Bryant's actions could be seen to be undertaken, not out of motives of self-preservation, but out of a desire simply to rid herself of Williams's presence at her home. Nevertheless, the granting of a self-defense instruction would have done nothing to prevent the jury from accepting this version of the facts. It is only when evidence consistent with self-defense is non-existent that the instruction ought to be denied.

Now I might have said "When a defendant raises the issue of self-defense, the State bears the burden of proving the absence of self-defense beyond a reasonable doubt" but as I re-read my thread I did NOT see such a statement.

Yes. We know. I wasn't quoting you when I quoted that, I was quoting paulsby's quotation of it.

You still don't seem to be getting it.

[Name removed]

79. Deleted message

Message removed by moderator. Click here to review the message board rules.

[iverglas]

80. "i appreciate the reasoned discourse."

others, like iverglas, will just troll and ignore the facts.


As I recall, I'm the one who started out agreeing with you.

:rofl:

If I hold your post up to a mirror and dab lemon juice on it, will it make sense?

[happyslug]

62. ONLY if the Defendant has produce Evidence in support of Self-Defense

Mere claiming Self Defense is NOT enough. In Miller the court ruled the that Self Defense "Self-defense instructions are required when a defendant meets his initial burden of producing “some evidence demonstrating self-defense....” Walden, 131 Wash.2d at 473, 932 P.2d 1237; see Redwine, 72 Wash.App. at 630, 865 P.2d 552. The burden then shifts to the State to prove the absence of self-defense. Walden, 131 Wash.2d at 473-74, 932 P.2d 1237.

Thus while Washington State does require the State to disprove Self Defense BUT only after the Defense have produced FACTS to support Self Defense. No evidence presented (and that means something more then the dead person had a gun on them AND the Defendant saying it was self-defense) then self defense is NOT permitted. Note this is a shift of evidence case, in the actual Miller case the issue involved an alleged attempt to slap a prisoner, which the prisoner claim to take as an assault and "defended" himself against the Prison Guard. The key was another prisoner was willing to testify that the Guard had been in a position to assault the Defendant NOT that the Defendant claimed he acts in self-defense himself.

This is different then the law in most other states, but it is NOT that radical different from New York State. It requires the state to disprove Self Defense (Which most states do NOT require of their state district Attorneys) but ONLY after enough facts in support of a claim for self defense had been raised. In this regard Washington State seems to treat Self Defense claims similar to Insanity claims, The burden is on the DA to show that the defendant not only did the crime BUT had the INTENT to do the Crime BUT only after the defense has shown evidence that the defendant lack the ability to form such an intent.

State of Washington vs Miller follows:
Court of Appeals of Washington,
Division 3.
STATE of Washington, Respondent,
v.
James C. MILLER, Appellant.
In the Matter of the Application for Relief From Personal Restraint of James Calvin Miller, Petitioner.

BURCHARD, Judge Pro Tem.FN*

FN* Judge John G. Burchard is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150.

James C. Miller appeals his conviction for third-degree assault. We hold the conviction is invalid because the jury was not instructed that it is the State's burden to prove the absence of lawful force (self-defense) beyond a reasonable doubt.

Mr. Miller was an inmate at the Asotin County Jail when he struck jailer Robert Walling on May 1, 1996. The State charged him with third-degree assault. See RCW 9A.36.031. At trial, Mr. Miller presented the claim that his use of force was lawful. The jury, which was not instructed on the burden of proof for self-defense, found him guilty.

Defense counsel said during his opening statement at trial that Mr. Miller did not deny striking Mr. Walling, but that Mr. Miller had acted in self-defense. Counsel said he would present evidence that Mr. Walling “put his face about an inch away from Mr. Miller. And that the final straw came, when he raised his hand up. Up to then it was angry words. Jailer Walling accelerated it by doing that. That's why it's a case of self-defense.”

At trial, another inmate testified:

Ah, I seen, ah, Miller and, ah, Officer Walling as they were facing one another, but but they're with their hand closed in a position of, like as if they were going to swing, down at their side. You know, their hand down their sides.

And, ah, I don't know if Officer Walling was going to raise his hand, and raise his hand to tell Miller to go to his cell, or what it was, but I when as the hand was coming up, in a motion, and hand was coming up in the air, ah, I watched him, Miller, throw one blow to, ah, as as it looked it looked to me as if there was going to be a punch thrown between both of them.

The inmate testified he interpreted Mr. Walling's manner as threatening:

Ah, was, ah, angry, ah, if I was in all I can really say, if I was in Mr. Miller's position, inmate Miller's position, and an officer was to come walking toward me in that manner, which I don't believe is a friendly manner at all, I probably would have, ah, struck the officer a long time ago, because I would have felt that there was going to be some kind of conflict physical conflict between me and the officer.

In self-defense, I would have did that. I would have swung first. I don't know if Walling was goin' to swing first, or if he was pointing to go down to the room.

Over the State's objection, the court ruled that the defense had presented enough evidence to warrant instructing the jury on the lawful use of force/self-defense. The court gave appropriate instructions defining the lawful use of force and the circumstances which would justify a finding of self-defense. However, neither party proposed and the court gave no instruction informing the jury that it is the State's burden to prove the absence of self-defense beyond a reasonable doubt.

When a defendant raises the issue of self-defense in an assault case, the State bears the burden of proving the absence of self-defense beyond a reasonable doubt. State v. Acosta, 101 Wash.2d 612, 615-19, 683 P.2d 1069 (1984); State v. Redwine, 72 Wash.App. 625, 629-30, 865 P.2d 552, review denied, 124 Wash.2d 1012, 879 P.2d 293 (1994); State v. Sampson, 40 Wash.App. 594, 597-99, 699 P.2d 1253, review denied,104 Wash.2d 1005 (1985); In re Personal Restraint of Skjonsby, 40 Wash.App. 541, 544-46, 699 P.2d 789 (1985); see State v. McCullum, 98 Wash.2d 484, 488, 656 P.2d 1064 (1983). Jury instructions, taken as a whole, must unambiguously inform jurors that the State bears this burden, and the better practice is for the trial court to give a separate instruction on the burden of proof. Acosta, 101 Wash.2d at 621-22, 683 P.2d 1069.FN1 Allowing the defense attorney to argue that his client acted in self-defense does not adequately inform jurors of the burden of proof. Id. A jury instruction that misstates the law of self-defense is a constitutional error and is presumed to be prejudicial. State v. Walden, 131 Wash.2d 469, 473, 932 P.2d 1237 (1997).

FN1. The Supreme Court's holding in Acosta was based in part on its reasoning that self-defense negates the culpable mental state applicable to many crimes. Acosta, 101 Wash.2d at 616-18, 683 P.2d 1069. The Supreme Court questioned this analysis in State v. Camara, 113 Wash.2d 631, 639-40, 781 P.2d 483 (1989), which held there was no constitutional impediment in a statutory scheme that required the defendant to bear the burden of proving the victim's consent as a defense in a rape prosecution. However, the Supreme Court continues to rely on Acosta in requiring that instructions “inform the jury of the State's burden of proving the absence of self-defense ....” State v. LeFaber, 128 Wash.2d 896, 903, 913 P.2d 369 (1996).

The State does not dispute that it bears the burden of disproving self-defense. However, it contends no error occurred in the present case because the defense presented insufficient evidence to justify any instruction on the lawful use of force/self-defense. Self-defense instructions are required when a defendant meets his initial burden of producing “some evidence demonstrating self-defense....” Walden, 131 Wash.2d at 473, 932 P.2d 1237; see Redwine, 72 Wash.App. at 630, 865 P.2d 552. The burden then shifts to the State to prove the absence of self-defense. Walden, 131 Wash.2d at 473-74, 932 P.2d 1237.

Evidence of self-defense is evaluated “from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees.” Janes, 121 Wash.2d <220,> ... 238, <850 P.2d 495, 22 A.L.R.5th 921 (1993) > (citing Allery, 101 Wash.2d <591,> ... 594, <682 P.2d 312 (1984) > ). This standard incorporates both objective and subjective elements. The subjective portion requires the jury to stand in the shoes of the defendant and consider all the facts and circumstances known to him or her; the objective portion requires the jury to use this information to determine what a reasonably prudent person similarly situated would have done. Janes, 121 Wash.2d at 238, 850 P.2d 495.

Walden, 131 Wash.2d at 474, 932 P.2d 1237.
Here, a witness testified he saw Mr. Walling raise his hand, possibly to strike Mr. Miller. The witness also testified that, if he were in Mr. Miller's position, he would have viewed Mr. Walling's act as a threat of injury and would have hit Mr. Walling in self-defense. This testimony met Mr. Miller's initial burden of producing “some” evidence of self-defense, and the self-defense instructions were required.

The trial court clearly recognized this by including instructions on the law of self-defense. However, the jury was not informed that the State bore the burden of proving the absence of self-defense beyond a reasonable doubt. The instructions were incomplete, and prejudice to Mr. Miller is presumed. The conviction therefore is reversed.FN2

FN2. Our conclusion makes it unnecessary to address his other issue on appeal or his personal restraint petition.


SWEENEY, C.J., and KURTZ, J., concur.

[iverglas]

63. I give up

if you make an mistake as to law as to self-defense

Exactly how would this be applicable to this case?

And ... exactly what IS a "mistake as to law as to self-defence"?

:wtf:


Now if the thieves had stopped and turned on the Store owner then it be self-defense again, but the burden is on the Shooter not the state and that is a huge burden of proof to produce.

I think we've established that you don't know what you're talking about here. Even though paulsby didn't catch on to the fact that that's what I was doing.

[paulsby]

37. your knowledge of US law is lacking

also note that murder requires more than intentional killing. it must be UNLAWFUL.

i suggest you fire up lexis-nexis, or westlaw or whatever engine you use and search how many cases of justified shooting people in the back you can find. under US law, it is not (in and of itself) illegal to shoot somebody in the back. it depends on the facts and circumstnaces. it is certainly not illegal under the federal standard. in every state i am aware of (which is admittedly not all) it is also not illegal.

i suggest your understanding of US law comes from television where it is routinely portrayed as illegal to shoot a person in the back. however, the law says otherwise.

i realize that canadian law may be different.

[iverglas]

61. lordy jesus christ

also note that murder requires more than intentional killing. it must be UNLAWFUL.

I love being patronized by the incompetent.

That may be so where you're at, but it's so where I'm at in only one narrow exception. The one I already provided you with. Other than it, all intentional killing IS unlawful.

When protected

34.(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; *AND*
(e) the flight cannot be prevented by reasonable means in a less violent manner.

The general rule, to which that is an exception, being:

When not protected

34. (3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) <the administration or enforcement of the law> in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

And the even more general rule, to which all of the above is the exception, being:

Defence of Person

Self-defence against unprovoked assault

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
It isn't that difficult for someone who knows what they're talking about to follow.

So yes. Where I'm at, someone who uses force intended to cause death or grievous bodily harm (and tell me that shooting someone in the back isn't) and who does not come within the exception in 34(4) has committed culpable homicide. Of the murder variety.

[backwoodsbob]

91. he should get a medal nt

[madville]

13. Something like that happens so quick

The fact a couple of them got hit in the back means little given the speed at which it all happens, he probably just unloaded as fast as he could. If a couple of them turned to run and caught some buckshot to bad for them.

Reminds me of an older gentleman that owned a plumbing business right down the road from my shop. He didn't lock the door and a few minutes after he closed and was the only one there, two young men barged in and beat him to death with a metal pipe, a shame he didn't have a chance to defend himself.

I always keep my handgun in my laptop case by desk nowadays, I take it just about everywhere except when I'm doing contract work on military bases. I at least want to have as good a chance as possible if I meet multiple threats one day.

[iverglas]

15. interesting

I do government contract work, from my own office in the building I own next to the one I live in, in one of my city's least highly sought after neighbourhoods. In nice weather my door is unlocked and open. I'd feel like a paranoid moron ... or somebody with an agenda that needed shoving ... if I had a firearm anywhere near me.

Inform all your co-contractors you are bringing a firearm onto their premises, do you?

Interesting that you don't take your trusty sidearm onto military bases. I guess members of the military never do anything, maybe even with firearms, that might hurt anybody.

Or ... do you just rely on the military to protect you?

:rofl:

[ManiacJoe]

27. You would seem to be lacking

in knowledge about the laws/regs governing firearms on US military bases.

> Interesting that you don't take your trusty sidearm onto military bases.
> I guess members of the military never do anything, maybe even with firearms, that might hurt anybody.

[iverglas]

28. nope

I thought it was pretty obvious, actually, that firearms would not be permitted in such places.

Just wondering whether the poster was as courteous to other individuals/companies for whom they do work.

Enquire about the policy and observe it? Or just tote yr trusty popgun along when you feel like it?

In any event, I can't figure out why someone so wed to the belief that they aren't safe without a gun at hand would even agree to work somewhere where it is not permitted. I.e., military bases. If one of those military folks comes in guns a-blastin, where would one be then?

[ManiacJoe]

31. You may not write as clearly as you think you do?

> I thought it was pretty obvious, actually, that firearms would not be permitted in such places.

Yet you suggested that his reason for not taking his gun there was something else (courtesy), hence my questioning of you knowledge level.

> ... wed to the belief that they aren't safe without a gun at hand would even agree to work somewhere where it is not permitted.

This is the part that many non-gun folks do not understand. Being without the gun does not make you "unsafe". The odds of being a victim on any given day are very low; you are usually safe just playing the odds. Carrying a gun makes you "safer" by pushing the odds in your favor a bit more in that you now have more options for getting out of trouble should the odds fail you that day. Having the gun does not guarantee you will escape the harm, it just betters the odds.

[rd_kent]

44. You got the first point right

I'd feel like a paranoid moron ... or somebody with an agenda that needed shoving ...


but the part about shoving an agenda? Have a look in the mirror.

[iverglas]

53. that may have made sense ...

... to someone with syphilis of the brain ...

[paulsby]

39. that;'s true but

even if he intentionally shot the guy in the back, it is still not necesarily illegal. i suggest this myth mostly comes from too much tv dramas where it is always portraryed as illegal. reminds me of several other tv use of force myths.

the case law is clear. shooting somebody in the back or while they are fleeing even if done intentionally is often legal.

[proteus_lives]

32. Good for Augusto!

He probably saved the life of his employee and protected his place of business.

[Mythsaje]

34. I will NEVER condemn someone for acting in self defense...

Or in defense of another.

Even in using deadly force to accomplish it, given reasonable expectation of death or injury on their part.

Shooting fleeing robbers in the back...? eh, not so much. It's hard for me to consider this justified.

[paulsby]

38. regarldess of what you consider it

it is not necessarily illegal. this is one of those tv myths- that shooting somebody in the back is necessarily illegal. it isn't. just like shooting somebody 'in the front' , it depends on the facts and circumstances'

case law. it's your friend

[Mythsaje]

47. Of course you mistake "legal" for "moral."

That's one of the problems with the (in)justice system and those who perpetuate it.

[paulsby]

50. our (in)justice system is the worst in the world

except for all the others.

example of legal shooting in the back.

we had a guy who had a warrant out for murder. (i would say indicted for murder, but technically WA has informations, not indictments, but i digress)...

we had info he was going to be in a certain area. we had multiple reports he was in the area to try to locate a witness (who was also at large) and kill the witness.

iow, we had a guy who had a warant for murder (iow the PC had been approved by a judge), and there were multiple informants (that met aguilar spinelli) that claimed he had threatened to kill the witness and was going to look for him. (this heightens the claim that if he is not apprehended, that there is (more than) reasonable belief that he will commit further violence).

we ended up locating the guy and got into a vehicle pursuit. eventually we PITT'ed him and he jumped from the vehicle and ran.

would i have been justified in shooting him in the back, especially if i gave verbal warning? every attorney i spoke to after this incident said i would have. in the back.

however, it's irrelevant because in the course of chasing him, he tripped and we arrested him w/o incident.

this is an extreme example (iow a very easy one) where shooting in the back is both moral and legal.

lots of others.

this is one story from the naked city.

carry on

[iverglas]

64. oh look!

If that whole fact situation doesn't just fall squarely within the exception in Canadian law that I cited way up above: s. 34(4) of the Criminal Code.

And of course, I started out citing that exception as being the circumstances in which shooting someone in the back would be justified and permitted by my law.

And of course, it is entirely unrelated to the facts of this particular case.

[kelly1mm]

41. You say they were fleeing. My training would suggest

that they are retreating to a covered position to return fire. Admittedly, without seeing the layout of the location I am speculating. However, after being confronted with 4 armed robbers who have used violence against someone already (the pistol whipping) I have NO PROBLEM with this shoot. In fact, I am actually amazed he was able to disable all 4 in the incident. Must have been buckshot. Thats what I call gun control.

[Irreverend IX]

45. The story's kind of confusing on that point.

It says the owner fired after the robbers started pistol-whipping an employee, and also that the robbers were shot in the back. It's strange for them to be pistol-whipping and guy and fleeing immediately afterward. I suspect that the robbers had just turned around after seeing the gun when he fired it. Being as the owner's 72 years old and had a ton of adrenaline in his system, he probably didn't even notice the guys turning around as he fired.

[gorfle]

46. In the end...

In the end, four lousy excuses for human beings were removed from society. A bad situation turned into a net good.

[iverglas]

65. you know what else is strange?

It's strange for them to be pistol-whipping and guy and fleeing immediately afterward.

That somebody would shoot at somebody who was in the process of beating a bystander. Strikes me as just a little reckless. And possibly not credible.

[Mythsaje]

71. With a shotgun, no less. n/t

[PavePusher]

97. Contrary to popular belief...

Shotguns are NOT indiscriminent weapons. Across the width of even a large business room (say 20x35ish feet), a shot pattern will spread only a few inches.

Good targeting control by the owner.

[eqfan592]

54. You wouldn't say such things....

...if you were in his shoes. It's easy to say what was "moral or not" when you're not there, seeing a group of armed men beating one of your employees and second count. It's easy to say it wasn't "justified" when you don't have your heart hammering in your ears, your adrenalin flowing like crazy, and your life passing before your eyes.

[iverglas]

66. my goodness

your heart hammering in your ears, your adrenalin flowing like crazy, and your life passing before your eyes

Exactly the right circumstances for having a firearm at hand, eh?

[hack89]

108. Didn't seem to be a problem here. nt

[rawdog]

111. Yes, I would much rather sit there and be victimized.

One ticket to ride on the cattle car, please!

[iverglas]

114. so when you said "the psychosis is strong here"

you were referring to where you were sitting?


One ticket to ride on the cattle car, please!

I mean, what are you reading here that no one else can see??


4 posts to date, 2 of them so far in this thread to moi.

A new member of the fan club! Shall I see whether you are so devoted that you have devoted all your posts to date to your new crush?

The Goddess of Truth and Beauty might decide to start being a harsh mistress.

Future postulants to the club may find themselves being required to bring gifts.

[Endangered Specie]

74. Lesson to learn here: Don't bring a handgun to a shotgun fight.

[iverglas]

76. how are your water pistols doing?

[Beaverhausen]

75. I didn't know the penalty for armed robbery was death

Oh yeah, it's not.

[iverglas]

77. this is the Guns forum

Abandon all hope of decency, ye who enter here!

[Skittles]

78. lord I wish we could put entire forums on Ignore

[friendly_iconoclast]

85. I know it's difficult, but you could try ...not posting or reading here...

Since it seems to disturb you.

[hack89]

81. Self defense is not a judicial process.

being shot is not a penalty.

[PavePusher]

99. You forgot to add...

It's an occupational risk.

:evilgrin:

[iverglas]

102. hey

no shit


being shot is not a penalty.

That leaves one option.

It's an assault. Could even be a fatal assault.


(Please, try to follow. Let me try to help you not get lost.
"Self-defence" is a concept. An assault is an act. See? Not the same thing.)

[hack89]

107. Does your bitterness permeate and poison your entire life

or do you come here just to get it out of your system? You are without a doubt the rudest person I routinely read here.

[iverglas]

115. do you make random noises at strangers on the bus?

Do you find people moving away from you whenever you sit down next them?

Yes, it could be your breath. But it could be the bizarre and pointless invective you are spewing into the atmosphere.



edit - who the hell types "admosphere"??

[one-eyed fat man]

82. So, tell me

is a dead woman in an alley, raped, and strangled with her own pantyhose morally superior to the woman explaining to the police how her attacker came to have his fatal bullet wounds?

Four career criminals violently (unless pistol-whipping bound victims doesn't count) and under the threat of death try to rob someone and deserve all this angst and sympathy because their victims failed to cooperate?

Just like rape is not about the sex, armed robbery is committed by thugs who get off on the humiliation and degradation of their victims. The money is secondary. If it was just money it is easier and safer to rip off someone's credit card number.

So four predators "got religion". They came in looking for trouble, the owner gave them a chance to leave and when they got violent with his employees he accommodated them.

I am sure they loved their Mommas and wailing female relatives will all be on TV saying how they were good boys trying to turn their lives around after getting out of prison again.

Yeah, they are poor, misunderstood, disenfranchised "yutes". Victims of the recession, who fell through the holes in the social safety net and were forced to stick guns in innocent people's faces and demand their money.

Sympathy???? you'll find it between shit and syphilis in the dictionary.

[iverglas]

100. just when I think someone here really has taken the cake

a new contender takes the lead.


you'll find it between shit and syphilis in the dictionary

Guess you'd know, eh? Seems you spend a lot of time there.

[Tejas]

106. Not much on shooting rapists are you?

iverglas (1000+ posts) Wed Aug-19-09 07:09 PM
Response to Reply #82
100. just when I think someone here really has taken the cake

a new contender takes the lead.


you'll find it between shit and syphilis in the dictionary

Guess you'd know, eh? Seems you spend a lot of time there.

[Bosso 63]

83. Not a penalty, but it is an occupational hazard.

[PavePusher]

98. Ah yes...

Victims should just submit to beatings and, often, being dragged into the back of the building and shot in the head.

How progressive of you.

[Tejas]

112. It would be for the trash that

did this:


http://cbs3.com/local/Police.Search.Suspect.2.1136128.html

Southwest Detectives are going door to door trying to get information about a robbery and assault that left a 100-year-old man beaten to the ground.

"He placed his hands around his neck, threw him to the ground and began striking his head against the cement sidewalk," said Lt. John Walker. "He took the man's groceries and $30 out of his pocket and fled on foot."

[D23MIURG23]

109. K&R!