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Burden of Proof for larger individuals

Discussion in 'Legal & Political Archive' started by bogeycentral, Nov 18, 2012.

  1. bogeycentral

    bogeycentral Central Oregon Member

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    A friend mentioned this to me today as I am not up to date on legalities. Currently I have my cane that helps me get around to use if worst came to worst for self defense. I was looking at a couple CCW options as there have been a few armed robberies lately in the complex at which I work. Looked at everything from .22 to .45 and haven't found anything I liked yet, thus the cane is still the primary tool. Now that I am completely off track, what I am curious about is whether as a larger individual would it be tougher to prove you felt your life was in danger? He was implying that at 300 pounds it would be tough to show fear from someone smaller. I understand a weapon is a weapon, but when you take into account the difference in body mass does it offset burden of proof?
     
  2. longcolt

    longcolt Zephyrhills, FL Active Member

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    I think if you can explain truthfully to a grand jury that you were in fear of your life and had to defend yourself and the facts back up your testimony your weight has nothing to do with your defense.
     
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  3. chemist

    chemist Beaverton OR Well-Known Member

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    Age and disability factor in too. Are you under a doctor's care? There are plenty of 300-pounders in this country who can't defend themselves at all.

    Nobody is going to just walk up and strongarm you, and if a robber pulls a weapon, then he's implied the use of lethal force. Size is not the issue. The only thing scarier than a big ugly guy with a knife is a cute little girl with a gun. And then, if you're afraid s/he's going to kill you, you are entitled to act with lethal force.

    I'm not an expert. I'm not a lawyer. I'm not giving advice.
     
  4. mjbskwim

    mjbskwim Salmon,Idaho Well-Known Member

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    My question to the prosecutor is,am I supposed to interview the guy before he attacks me?
    Ask him what hand to hand training he has taken?
    Does he know how to kill a man with his hands?
    Has he killed anyone before? Beat them into submission?
    Weapons training? Weapons on him?
    His mental state?

    We have shut down funding for mental institutions and now we have a bunch of crazies walking about. How the F#@K are we supposed to know who is about to attack us?
    I'm a fat boy at about 240 and I don't want to scrap with some 20-30 year old. Never did like fighting much. Or was it the punches to the face I didn't like?
    Plus if you are using a cane,make it crutches after the fact:thumbup:
    Oh and remember,cane swords are illegal to carry in WA.
     
  5. 22many

    22many PNW Well-Known Member

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    Danger comes in all shapes, sizes, and colors. You already have a positive going for you if you were in a situation that resulted in deadly force. Disabled (I'm guessing) and unable to defend yourself less than others would.

    About 6 months ago I was at Portland gas station filling up. Talking with the attendant about how crime has risen in the Portland area, he proceeded to tell me that a week earlier a woman in her early 20's, about 115 lbs came up and robbed him at gunpoint. He was in his late 20's maybe early 30's and about 240 lbs and could easily take the smaller woman. However, he decided to just hand over his cash instead.

    Funny thing is, he said she was kinda cute. You just never know.
     
  6. Burt Gummer

    Burt Gummer Portland Completely Out of Ammo

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    It is all about what a reasonable person in a given situation would do.

    If you are 220 lbs of muscle and are attacked hand-to-hand by a 90 lb girl and you shoot her, you are screwed.
     
  7. 4NONISSUE

    4NONISSUE south sound Member

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    Not if the Tweaken B@#%* is in your house!
     
  8. deen_ad

    deen_ad Vancouver, WA Well-Known Member

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    Well, I'm almost 66, have had MS for about 40 years and have little upper body strength although my legs are still somewhat OK, just not what they used to be. I only weigh about 185 and have handicapped plates on my van and carry a .45. I don't plan on going hand to hand with anyone!
     
  9. orygunmike

    orygunmike Beaverton, OR Active Member

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    This short article should go a long way towards providing you with a good answer to your question...
    Judicious Use Of Deadly Force


     
  10. Misterbill

    Misterbill Yakima County, Washington New Member

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    Any disability factor is a big deal in any self-defense case. Weight certainly comes into this equation. In other words, even if you are 300 pounds, the fact that you need a dcane to get around circumvents anyone's attempt to portray you as a bruiser. No Worries. None.

    To use lethal force in WA, you must believe, and a reaosnable person would concur that: You were in IMMINENT threat of death or grievious bodily injury." Meet those criteria and you're golden.

    In practice, you're self-defense shoot has to be "substantially out of bounds" for you to get prosecuted AT ALL.
     
  11. Riot

    Riot Benton County, Washington Well-Known Member

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    It all comes down to the Totality of Circumstances (this is a legal term by the way). It basically means that given all the facts and perceptions of the person(s) at the time that their actions would be similar to a reasonable person (see also the the Reasonable Person Standard).

    No one factor can determine if an outcome is justifiable or unjustifiable. Do you ever remember hearing a case of Ian Birk? Here is an officer who shot and killed a Native American man (John Williams) wielding a knife.
    [video=youtube;EnKLEOXenow]http://www.youtube.com/watch?v=EnKLEOXenow[/video]
    The shooting was deemed unjustifiable due to the Totality of Circumstances...Mr. Williams wasn't meeting all the necessary causes to deem force used. I carry a gun on me at all times, but that doesn't mean I can get shot by the police for walking the streets with it. I have to have means/ability, motive/intent and opportunity to use it.

    So, hitting back on topic...just because you are big doesn't mean you can't shoot a 90lb female. Now if you were 300lbs, 6'5", fit, under 30, no medical problems and you were mentally alert and physically capable of defending yourself then all those facts (together) would be a complete package against you in a use of force situation. Age, size and gender mean nothing by themselves- just like the knife that John Williams had (by itself) did not preclude the justification for deadly force by former Officer Ian Birk.

    Many people are hitting parts of the need for the justification of deadly force. You have to have a genuine perceived threat of death or serious bodily injury (i.e. loss of limb, eye sight). If you can articulate this to a jury then you are golden. The main thing is not to worry about your size as much as your totality of circumstances (which changes from day to day and even minute to minute). You being sick, fatigued, injured or even having your child in your arms can change your totality of circumstances from "I should run" to "I should shoot him until the magazine is empty".

    To be clear...

    Everyone that has ever carried a gun is afraid of being sued or charged with a crime by an overzealous District Attorney after a shooting (whether it was completely justifiable or not). However, If you are honestly more afraid of the consequences of what will happen after the bullet leaves the gun than what will happen if you are not carrying one then you shouldn't carry one. Period. Nevertheless, we all fear reprisal from a firearm use. My advice? Shut your mouth and call a lawyer. When he/she comes to your defense then ask them what they think about the assault weapons ban of 1994...if they look at you like you have a horn growing out of your head or blab off about how AK-47s and hi-cap clips are killing children then fire him/her until you get one that is at least non bias and knowledgeable about firearms and defending deadly force encounters in court.

    Hope this helps...
     
  12. Burt Gummer

    Burt Gummer Portland Completely Out of Ammo

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    I wish you wouldn't have posted that video. Makes me sick to my stomach, disgusting.

    A different video appropriate to your comments on YouTube would be "Don't Talk to Police", posted here a few times so I won't bother. One of the best.
     
    Redcap and (deleted member) like this.
  13. Riot

    Riot Benton County, Washington Well-Known Member

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    Whether you like or dislike the actions of Ian Birk is not what is important. We should learn form the incident and see how you must meet all criteria (means, motive and opportunity) to justify deadly force.

    Although I agree that it makes me sick to my stomach that he basically got away with murdering a civilian, endangered the lives of everyone else around him by discharging his firearm in the city and was adamant about his innocence (even after the knife was found in the CLOSED position), this video shows how a key step was missing for this to be a good shooting.

    intent-ability-opportunity-jeopardy.jpg

    John Williams wasn't displaying any hostile intent and nobody's life was in jeopardy. Therefore, Ian Birk was not cleared for the shooting (hence the example presented).

    intent-ability-opportunity-jeopardy.jpg
     
  14. hermannr

    hermannr Okanogan Highlands Well-Known Member

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    Officer Birk had no reassonable reason to contact Williams in the first place, so even if Williams' closed knife had been a perceived threat by Birk, Birk had no reason to put HIMSELF in that potential jeoperdy by trying to stop Williams. IMHO: Birk should have gone to jail for second degree murder.
     
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  15. Blitzkrieg

    Blitzkrieg WA Well-Known Member

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    The cop was definitely looking for someone to shoot

    I teach stick fighting as part of JKD, I'm large, fast and still pretty strong and usually carry a stout walking stick (because I can) but I always pack at least a 9MM and usually a 40
     
  16. bogeycentral

    bogeycentral Central Oregon Member

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    Always looking for better ways to defend myself. I am 30 and just had double foot surgery this month so walking is far from easy. At 6' tall and 310 pounds I suffer from joint instability and joints are known to dislocate from time to time especially when running. I don't move all that quickly and physical limitations make some exercises even tougher. Given all that I am not in great shape at all and prefer to avoid situations if at all possible, but sometimes it is just a matter of wrong place at wrong time.

    I greatly appreciate all the information and resources provided. Big thanks to Riot & Orygunmike for the links they provided.
     
  17. Riot

    Riot Benton County, Washington Well-Known Member

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    Anytime...I'm also a defensive tactics instructor by the way, so I'm familiar with the case laws that protect you against uses of force.

    My advice?

    1) Don't look for trouble.
    2) Stay sober when in public.
    3) Always try to find an exit first (if feasible).
    4) When you do decide to use deadly force, use it quickly and effectively. Don't pull out a gun in hopes that the gun (alone) will stop the threat. Be willing to use it if you carry it and keep your head on a swivle (pay attention to your surroundings). Bad guys don't do bad things by themselves and you also don't want to be seen as a bad guy with a gun by another person carrying, either.

    You've taken an important step in becoming a sheepdog amung the sheep...remember that this is a constant learning process and carrying a firearm is a great responsibility. You owe it to yourself and those around you to practice with your firearm and become proficient in it's use (after all, I don't want to get shot by you!).

    Stay safe and take care.

    *Riot Out*
     
  18. mortar maggot

    mortar maggot western wa Active Member

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    What RIOT has typed is pretty much what I was taught in my training.

    Right now I am recovering from back surgery, I can't run away right now, I can't physically fight back, if I did I very well will totally muck up my surgery and cause probable permanant disability.

    My only choices right now are to not let myself get in a bad situation, shoot them, or let them do what ever to my and my loved ones.
     
  19. Riot

    Riot Benton County, Washington Well-Known Member

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    I forgot one big thing to add...

    *Don't be a hero.

    Just because you have a gun, doesn't mean that you can handle all situations and you shouldn't attempt to get involved in all the violent encounters. Run, take cover, hide and do what you can to get home to your loved ones.

    Obviously this dynamic changes if your loved ones are in peril...that's when all bets are off.

    To summarize: always be prepared to meet force with even more ruthless force to win the day, but only if getting out of dodge isn't an option.
     
  20. Blitzkrieg

    Blitzkrieg WA Well-Known Member

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    Of course your reaction will depend on who you are are what your abilities are