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In Newton, Massachusetts, a pro-Palestinian man got into a shouting match with a group of pro-Israeli demonstrators across a busy street. For some reason, though he was mostly exchanging words with a woman, he ran across the street and tackled a man named Scott Hayes, who was also part of the demonstration. While he had Hayes on the ground, Hayes -- who had a legal gun -- shot him in the stomach. Two other pro-Israeli demonstrators pulled the man off Hayes, and he was later brought to a hospital.
Hayes was arrested and charged with Assault and Battery with a Dangerous Weapon and Violation of a Constitutional Right Causing Injury. The only justification I can come up with for the latter is that it is the constitutional right of pro-Palestinian people to attack people supporting Israel.
Hayes will certainly plead self defense, but self-defense expert Andrew Branca at Legal Insurrection says it won't work. Basically the government's view is if someone has tackled you and is beating on you, it's not sporting to fight back with a weapon (i.e. deadly force). Think of government as the two guys who hold you while their buddy punches you.
This was all captured on video (linked in the Legal Insurrection article); there's really no doubt as to the course of events.
To add insult to injury, the pro-Palestinian man has not been charged.
(Hayes, BTW, is reportedly not Jewish)
The defense has to be proportional to the threat; deadly force can only be used if the perpetrator has a reasonable threat of death or serious bodily injury (serious usually meaning permanent disability, not a black eye). Based on the information available, if he hadn't been shot and were arrested instead, the charge would have probably been something like misdemeanor battery, which wouldn't usually even merit jail time. If the facts come out that the guy were being wailed on, he may have a good defense, but if it's a mere scuffle as described in the article, it's a long shot that should get pled down. This may seem unfair, but for public policy reasons the state prefers that scuffles don't escalate to shootings.
I think the threat posed by an attacker doesn't just mean the attack that has already happened, but what a reasonable person might believe will happen imminently if the attacker is not subdued. This is especially relevant when the ability to change the situation may decrease significantly.
For example, choking someone with a noose or a garrote for a minute or so will not produce any serious lasting injury but continue on another two minutes and it's irreversible brain damage. So I think the question is, if someone has you in a garrote, is it reasonable to perceive this as a threat of serious injury even if, as yet, they haven't crossed that line? And again, especially relevant given that the victim doesn't have a ton of time to wait and see before it's gonna solely be the aggressor's choice whether to stop before or after the line.
I don't know the intricacies of self defense law, but I think it's more than merely unfair if the law demands victims put themselves at the mercy of an attacker.
The standard is only concerned with what is reasonably likely to happen, not with worst case scenarios. The likelihood of an attack with fists or tackling isn't reasonably likely to result in death or serious injury, absent some aggravating factor that isn't present here. That's pretty much black letter law in any jurisdiction.
I didn't watch the video, so this is more of a general question: Doesn't the guy having a gun change this? If a guy tackles you and there isn't a huge skill/strength disparity it'll probably take him at least a minute to beat you to death. If you have a visible gun, it takes him seconds to take it and kill you. At the very least you need to secure your gun (taking away from your ability to defend against strikes) at which point he reacts to you reaching for your gun and the two of you are fighting for control of a gun. What am I missing?
No, not really. As I said in another comment, the legal standard is whether there's a reasonable likelihood of death or serious bodily injury, not the worst-case scenario. If the person is carrying a concealed weapon, and there's no evidence that the attacker either knows or has reason to know that his victim is armed, there's no way the victim could form a reasonable belief that the attacker is going to take his weapon and shoot him with it. Especially consider that the vast majority of fights, even one sided fights, don't result in death or permanent disability.
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