Punch as Deadly Force

[ELB]

Since this comes up as an item of discussion occasionally, I present another data point:

http://www.nypost.com/p/news/local/manh ... 0ej5VTlWsM" onclick="window.open(this.href);return false;

Summary:

East Village, NYC

Woman stands in empty parking space to "hold it" for her boyfriend.

Another man drives up, wants parking spot, gets out.
- According to him, he calmly asked her to move so he could park
- According to the DA, he screamed at her

Then an altercation.
- According to him, she hit him in the face first, several times, leaving a laceration on his forehead
- According to police, he punched her twice in the face.

He apparently admits to punching her; problem is, it knocked her down and she is in a coma. Part of her skull removed because of brain swelling. Not know whether she will live.

Man boogied from the scene, but cops got his license plate number somehow, and two witnesses picked him out of a line up. He says he didn't know she was hurt, he just went to the party he had originally been heading for.

He is an electrician with a police record.

His lawyer says surveillance video shows her throwing first punch. Video not available at the link right now.

Edit: BTW he is 5' 7" 150 lbs, she is 4' 11" 100 lbs.

[Beiruty]

If this in TX,
When physically assaulted by the lady with first punch, the guy may had the justification to use force as a response, which he did.
In TX, the guy may get a no-bill or a good lawyer may get his client cleared as his actions was in-self defense.

Now leaving the scene was a wrong move, he should have called the 911 and reported the incident. A good lawyer may say he disengaged as not to escalate the incident more and he was not aware that the lady is seriously injured.
DA most likely would charge a aggravated assault causing serious bodily harm or 2nd degree manslaughter.

If I am wrong, please correct me where due.

[AJ80]

If this in TX,
When physically assaulted by the lady with first punch, the guy may had the justification to use force as a response, which he did.
In TX, the guy may got a no-bill or a good lawyer may got his client cleared as his actions was in-self defense.

Now leaving the scene was a wrong move, he should have called the 911 and reported the incident. A good lawyer may say he disengaged as not to escalate the incident more and he was not aware that the lady is seriously injured.
DA most likely would charge a aggravated assault causing serious bodily harm or 2nd degree manslaughter.

If I am wrong, please correct me where due.

I'm not a lawyer, but isn't it unlawful to use deadly force against force?
If an individual punches someone much larger and cannot do any serious bodily injury with his or her fists, wouldn't that be force?
But if that same individual punches someone much smaller and is capable of causing severe bodily injury wouldn't that be deadly force?

I mean if a 5 year old got mad at me and started punching me, I know it would be unlawful for me to punch him in the face because of it. Wouldn't it be the same for a man to punch a smaller woman in the face even if she punched him first?

[steveincowtown]

INAL either, but I think this is kind of a grey area. If I run into UFC champion and somehow I tick him off, and he says "I am going to kill you." I have a reasonable expectation that he probaly is going to use deadly force...his fist. If a 5 year old punches me I have a reasonable expectaion that this is not deadly force. Somewhere between those two scenarios is the grey area (a really, really big grey area).

[srothstein]

Beiruty, I think you have it correct. If this were Texas, I think he will be able to win a trial based on self-defense, IF what he is saying about her hitting first is true.

AJ80,

There is a problem with the disparity of force argument. In general, you have the correct logic, and with a five year old, you would be right. But with an adult, the chance of serious bodily injury is lessened, so his punch may not be deadly force just for throwing it. The problem then becomes when simple physical force with personal weapons (hands or feet) becomes unreasonable.

For example, in your scenario, he might not be able to punch the five year old in the face, but he would almost certainly be able to spank the child or grab his arms and hold them. This may cause injury but not serious injury. With his reported size and the woman's reported size, a punch to the face may not be presumptively deadly force. A part of the question would definitely be his intent (hurt, seriously injure, or just get her to stop hitting him).

And this reveals one of the problems with Texas law. The definition of deadly force and deadly weapon are in part dependent on the result and not the intent. Even assault is defined based on the result and the victim's perception (if the victim says he felt pain, it becomes a class A - no pain and it is a class C). But I don't think I could come up with a better way to handle these weird situations than what we have now.

[cbr600]

Wouldn't it be the same for a man to punch a smaller woman in the face even if she punched him first?

The easy solution is don't start fights you can't win.

A better solution is don't start fights.

[seamusTX]

This was not a fight between near-equals. There is tremendous prejudice—nearly a taboo among civilized people—against men hitting women.

Men have far more upper-body and arm strength than women on average, even when they are similar in size and weight.

A man 8 inches taller and 50 pounds heavier than the woman—granted he is not a big man—has choices:

• Turn and walk away. Park somewhere else.
• Put his forearm in front of his face while guarding his torso with the other hand.
• Grab her strong arm and calmly suggest that she cool down.
• Pepper-spray her.
• Tell her, "Oh, you're beautiful when you're angry."

Now he is indicted for a felony and either gets to spend all his assets on a lawyer or cast his lot with a public defender. A jury gets to decide two years from now whether he walks or spends some vacation time in the Rikers Island Resort Spa.

Over a parking space.

(I grew up in a crowded city neighborhood and know how heated these disputes can get. I spent hours shoveling out parking spaces. I have no sympathy for people who turn to violence in these situations.)

BTW, the New York Post is barely a step above the National Enquirer, but the same facts are reported in more reputable sources:
http://newyork.cbslocal.com/2011/03/07/ ... rage-case/" onclick="window.open(this.href);return false;
http://www.nydailynews.com/news/ny_crim ... tml?r=news" onclick="window.open(this.href);return false;
http://brooklyn.ny1.com/content/top_sto ... f-defense/" onclick="window.open(this.href);return false;

Now, I don't care what happens to this model citizen. But I hope he serves as a bad example.

- Jim

[Texas Dan Mosby]

I'm not a lawyer, but isn't it unlawful to use deadly force against force?

No, it is not.

Force, other than deadly, can instill the fear of great bodily harm or death by itself. Think of a 100lb female being dragged into a van by a 200lb male. Individuals that can't stop threats using other than deadly force due to disparities in strength / numbers have the right to defend themselves with deadly force.

This was not a fight between near-equals. There is tremendous prejudice—nearly a taboo among civilized people—against men hitting women.

Men have far more upper-body and arm strength than women on average, even when they are similar in size and weight.

NO, NO, NO, NO!!!

Men and women are "equals". Where have you been? There are no strength disparities between genders! Sure, every world record strength, speed, and endurance record is held by males, but what does THAT mean?

You, sir, need to get with the times. Males do NOT naturally have strength advantages, and to NOT beat the living snot out of a female that physically challenges you is DISCRIMINATION.

Equal opportunity right?

[seamusTX]

Can we keep this discussion based in the real world, where people get hurt or killed, arrested, and possibly sentenced to prison?

Even most die-hard feminists recognize that men can physically overpower women. I don't know of any that think women can compete on equal terms in boxing or wrestling against men (don't go there ).

Granted, women who master a martial art have an advantage over mere thugs—not an advantage that will prevail in every fight. I doubt that was the case here.

- Jim

[Beiruty]

Stay away from those ladies. Proceed at your own risk


Intro: http://www.tofugu.com/2008/08/09/interv ... modafferi/

[jimlongley]

Remember Gordon Hale.

[seamusTX]

Gordon Hale was punched while sitting in a vehicle (immobilized) by a huge guy, something like 6' 6" and 350# and nine years younger. The first punch broke bones in his face.

Even so, he was arrested and charged with murder. He was no-billed.

There is no comparison with a man punching a woman who was the size and weight of an average 10-year-old girl.

- Jim

[AJ80]

I'm not a lawyer, but isn't it unlawful to use deadly force against force?

No, it is not.

Force, other than deadly, can instill the fear of great bodily harm or death by itself. Think of a 100lb female being dragged into a van by a 200lb male. Individuals that can't stop threats using other than deadly force due to disparities in strength / numbers have the right to defend themselves with deadly force.

I believe the deadly force in the case you describe would be used to prevent kidnapping, not merely to prevent force.

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

[Zoti]

I teach Muay Thai for a living. This is exactly why I tell my guys that if they ever need to use the skills I teach them then they should use the kicks and not punch the head. The problem is you knock someone out and they die because they hit their head on the pavement.

A good leg kick or a push kick to the gut will get you better results and will not end up with you being on trial for man slaughter.

[Bullwhip]

Remember Gordon Hale.

+Kenny Tavai (sp?)

Big samoan dude starts beating down much older man pinned in truck, stopped in traffic, no way to leave. I think it was the first CHL who shot somebody, law was very new, hadn't been tested. I bet now nobody would be arrested in a case like this.