Defenses for Allegations of Dangerousness

(The content below was transcribed from an interview done with Acacia Law. We think you'll find it much easier
and more enjoyable to read this way.)

Interviewer: How would you typically defend a case to get the dangerousness hopefully taken off the table?

Acacia Law The easiest way to handle these cases in that regard, is to first of all, consider the circumstances in which the activity took place. Ordinarily in these types of situations, there are at least two possible more combatants. They may have various reasons for believing that the other person is either armed or intends to harm them. And in so doing, you've created what is called a separate defense under the criminal code. Which is an affirmative defense called “justification.”

Justification is basically a situation wherein an individual can or does in fact use deadly force by virtue of utilizing a deadly weapon or threatening with such. But they are doing so under circumstances wherein it is reasonable for them to believe that but for the exhibition or application of the deadly force, they themselves will be placed in serious physical harm's way, or may be facing death.

Self-Defense/Defense of Others

Interviewer: I guess you can call that self-defense, right?

Acacia Law Yes. It also can be used in defense of others. In other words, if there's a third person involved. For example, if you were you were with your wife and somebody came to attack you and you had a weapon and you displayed or discharged the weapon to defend yourself. Assuming for a moment that they weren't coming directly at you but at your wife, you would be justified in employing that deadly weapon, in order to protect the third person. There is a fine distinction though, between defending yourself and defending a third person, which is as follows.

If you are defending yourself, juries are supposed to consider what it would be like for a reasonable person under the same circumstances to assess the information that is before them. In other words, given a set of facts would the average person or ordinary person reasonably believe that they are in fact in some sort of serious harm's way?

For defending a third person using deadly force, not only must it be reasonable, it must in fact be the case. So, there is a fine distinction. I think the policy reason behind it is because it would simply be too easy to shoot someone who's going after someone else, using the excuse that you thought that they might harm them. Knowing full well that you can't read what's in that persons mind. Do you see?

Is This a Provable Defense?

Interviewer: I mean how much harder is that to prove, versus an attack on you directly? Can you provide some specifics on whether it's provable or not?

Acacia Law Yes. In cases where you have, for example, an individual who confronts, again let's just use the husband and wife example. Since that's the easiest to picture, someone draws down a gun on them.

Justification Theory

At that point, if you were to take a gun or disarm them with a deadly weapon of some sort, it's doubtful that a jury is going to believe that that person was not directing the harm towards both individuals. In that case you are likely going to win on a justification theory.

Interviewer: I understand.

Acacia Law Another set of circumstances might be where you have two friends in a bar. For example, here only one is attacked. The other person knows or has reason to believe that it's not necessarily a deadly attack, yet he treats it as such to justify inflicting harm on the other individual. That is what the statutory provisions are designed to prevent. Using a third person as an excuse for committing an act that you otherwise would not be allowed to commit, without breaking the law.

Interviewer: Okay. So, it's similar to someone looking at my wife I'm going to cause harm to that person only because they looked at my wife.

Acacia Law Correct. That is correct, and that is why it's stricter. Because they don't want the defense being used in that manner. So, that is why in those circumstances the jury has to conclude that without a doubt the person in fact was threatened.

Interviewer: It sounds like when there's a conflict that everyone's going to be charged every time and then each one will have more or less success defending it. Or is that wrong?

Acacia Law No, actually it's interesting. Usually my experience has been the police usually pick one side or the other. They'll usually choose one party or parties, to a conflict and more or less view them or evaluate them to be the victim.

The other party they evaluate or determine to be the aggressor. And essentially that is how their police reports are written. So, a lot times what you're experiencing is what's considered a judgment call, by the officers. Normally, they're not on scene at the time of the occurrence and just like in domestic violence cases, they're not exactly certain what happened. They're trying to piece together what occurred, but the accuracy of their assessment is probably questionable.