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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.
That does not seem factually true or we are not talking about the same thing.
A person tackled on the ground then pummeled with fists while defenseless is likely to get a concussion or worse.Every single punch to the head is a spin of the roulette wheel.
Sorry, I was on mobile yesterday and while I was trying to give the general principle I wasn't sufficiently clear as to the details. It's highly fact dependent. The general principle is that you're allowed to defend yourself, but the degree of force has to be proportionate to the threat. So if someone attacks with fists, I'm allowed to respond with fists. In the scenario you describe, where someone is being pummeled with fists while defenseless, then yes, I do believe that a self-defense justification would be appropriate. But that's not most attacks or scuffles, and it's not what happened here.
Exactly. Remember, the standard isn't that death or serious bodily injury is a mere possibility, but a reasonable likelihood. A roulette spin is not a good analogy for something that is reasonably likely to happen. Getting shot or stabbed is not a mere "spin of the roulette wheel" as to whether you could die or be seriously injured.
Right, this I understand.
Either I don't understand this or it is inconsistent with the previous sentence. A person could be attacking me with fists but threatening me with a noose or threatening to throw me in a van.
The lower bound for the severity of the threat is what the attacker has already done, but a reasonable person might believe the threat is significantly higher based on the circumstances.
I think the issue here is that by the time that happens, the opportunity for self defense has already passed. A reasonable person does not wait until they are already on their back getting their head smashed into the concrete before escalating because they know that at that point successful self defense is unlikely.
Of course, one has to have formed a belief that the attacker is imminently likely to use serious force and that belief has to be reasonable under the usual tests. But there is no requirement that I can discern that requires actually waiting until that happens.
A quick flip through the caselaw doesn't seem so clear either. A jury did acquit Bernhard Goetz (except on the carrying without a permit charge) despite none of the attackers even punching him, with the notion that when a group of strangers says "give me $5", they are implicitly threatening serious bodily harm. And there's a few more less prominent cases of deadly force in response to unarmed attacker(s) that I found that seem to imply that reasonable beliefs about imminent threats that are not yet materialized count.
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