Reasonable Fear of Imminent Danger: Good Social Policy

middling solicitude of Imminent insecurity Good genial Policy? BY gotten Reasonable Fear of Imminent Danger Good Social Policy? Giovanni Mike 4324324 LISTENED 1001 sum 13 Professor James Barney A sober f roleplay Is that our g overnment has a monopoly on the use of get, b arly It give the axe non protect every single at all quantify In an Immediate fashion. Joel samara, criminal natural law, at 1 55 (1 lath De. 2014). Therefore, citizens argon permitted to use proportional imbibe in a self-help fashion as long as 1. The necessity is great 2. The need exists refine now 3. The squelch is used for foilion only. D. At 155. However, preemptive tribes or retaliation are not justifications for world power used in self-defense. d, at 155. There are also four elements of self-defense unprovoked attack, necessity, proportionality, and average belief. d, at 156. The first three were alluded to earlier and are fairly self-explanatory, scarcely presumable belief ordain be the pri mary pore in this discussion. This element requires that a player must(prenominal) digest the commonsensical belief that Its necessary to use unhealthful military to neutralize an Imminent mortal(a) attack. D, at 156. However, what Is sightly awe? How does It play out In the homage? Is the hindrance on the mortal utilize vehemence against an aggressor to overturn that he or she possessed rational business organization? Does this requirement change whether a person is at should be look into whether the person using noisome force had a reasonable opportunity to crawl in and avoid furiousness? Should we offer civil granting immunity to those who used deadly force legitimately? Overall, are the recently to a greater extent aggressive self- defense laws good for frequent policy?Do they accept those with itchy trigger fingers to ask a practical(prenominal) license to bulge out, or do they take an pointless necessary step to put the risklessty f law-abiding citizens ahead of the concerns of violent law-breakers? Newer self- defense laws, such as the one passed by Florida, un inescapably presume reasonable worship in defending ones dwelling house and fail to adequately consider whether a person using deadly force had a profession to kip down (in public spaces) when violence could have been slow avoided.Citizens should reasonably be expected to show that their deadly use of force was retri hardlyoryified due to their legitimate fear for their safety whether theyre at home or in public theyre burden of proof shouldnt be beyond a seasonable doubt since the pursuit could probably cast doubt on this with relative ease since its based on the subjective beat of fear. Subtle wording differences in these laws can s focussing security measures to either the aggressor or defender in these situations?its critical to strike a healthy balance. So how did we get to the self-defense laws used today? termsonise to Joel Samara, Criminal Law, at 164 (1 lath De. 2014), since the thirteenth century English common law requisite that a person had to prove that hed dened to the wall before being middlingified in killing another errors. The US began to reject this practice in the nineteenth century and replaced it with a no craft to retreat requirement, which holds that a person can be Justified in killing someone in self-defense. d, at 164. This saucily approach to the use of force by the common man was thought to be more meet to the bravery of a true man. d, at 164.This true man was thought to be someone who would do whatever he had to do to protect his wife, kids, and the nation. d, at 165. Legislators and judges carved out the stand your dry land rule from these anteriorly mention values, which assures that if a man didnt start the fight they could stand their ground and kill in self-defense without having to retreat from a place they had a legal rectify to be. d, at 165. Also, the retreat rule was also create d that obligates a person to retreat if they reasonably believe that theyre threatened with death or grave harm and they are able to retreat without continuing to be subject to this danger. D, at 165. Furthermore, the castle school of thought was created as an exception to the retreat rule when the context is within someones home, where they have no duty to retreat as Eng as they reasonably believe there is an imminent threat of death or solid bodily harm. d, at 165. Since 2005, more than forty body politics have passed or proposed untested castle doctrine man encounter intended to expand the right to use deadly force in self-defense. d, at 172. Florida was the first state to pass this type of statute, and it continues to be the model for the rest of the states. D, at 172. Their statute states that a person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm if (a) The person against whom the defensive force was used as in the process of un true(a)ly and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle (b) The person who used defensive force knew or had reason to believe that an unlawful and forcible door or unlawful and forcible act was occurring or had occurred Old, at 172.Pennsylvania, they have a right to be in (2) they believe that the use of deadly force is immediately necessary to prevent death, serious bodily injury, kidnapping, or rape (3) the aggressor displays or uses a firearm (or replica) or any other deadly weapon. Joshua Light, The castle precept?The Lobby is my Dwelling, Volvo 22 Widener Law daybook 236 These types of laws do not exist without controversy, since there are those (2012). That claim that they give citizens a virtual license to kill. Supra, at 174.On one side, people like Marion Hammer, president of the National Rifle Association, parcel out that these new laws are Just protecting a right that has been around since the asses and that we shouldnt have a duty to retreat only to get chased down and beaten to death. d, at 174. Indeed, Florists intent when they passed their castle-doctrine law n 2005 was that it was necessary to restore absolute rights of law abiding people to protect themselves, their families, and others, and their property from intruders and attackers without fear of prosecution or civil action.Wyatt Holiday, The Answer to Criminal Aggression is Retaliation Stand-your-Ground Laws and the Liberalizing of self-defence, Volvo 43 University of Toledo Law survey 417 (2012). Supporters of the castle doctrine-type laws recognize that there are times when the governments monopoly on violence must be set deflexion to allow law-abiding citizens to protect themselves when time is limited. Benjamin Levin, A Defensible Defense? Reexamining Castle Doctrine Statues Volvo 47 Harvard Journal on Legislation 540 (2010).When an aggressor poses an immediate threat, the defenders preservation of self shou ld take antecedence over the aggressors culpability. d, at 539. Others like Jim Brady from The Brady Campaign believe that these laws are ushering in a violent new era where civilians have more freedom to use deadly force than even the police force. Samara, Criminal Law, at 174 (2014). They also claim that these laws allow those who have an itchy trigger finger to simply claim that they were in fear and therefore justified in using deadly force. d, at 174.To stigma things even more complex, states have their own versions of the law that are still in flux and fairly open to reading by motor lodges?it is not always straightforward when someone is legally entitled to use deadly force to protect themselves. Levin, A Defensible Defense 534-536 (2010). What does reasonable fear even mean? Unfortunately, this is not elementary to answer. Ohios depiction of reasonable fear is somewhat helpful the actor using deadly force must have a bona fide belief that he/she was in imminent danger f death or great bodily harm and the only means of escape was to use deadly force in retaliation.Wyatt Holiday, The Answer to Criminal Aggression is Retaliation Stand- Your-Ground Laws and the Liberalizing of Self-Defense, Volvo 43 University of Toledo Law Review 425 (2012). The honest and reasonable requirements capture it seem like a hybrid objective/subactive requirement, but its still a subjective standardized as highlighted by the Ohio Supreme Court. d, at 424. This courts instructions on this standard recommended that to determine whether a suspect had reasonable fear of imminent danger U must put yourself in the position of the Defendant, with her characteristics, knowledge, or lack of knowledge, and under the same circumstances and conditions that surrounded the Defendant at the time. You must consider the conduct of the victim and determine if such acts and words caused the Defendant to reasonably and honestly believe that she was close to be killed or reasonable fear is so subjective, because of the wide range of situations people find themselves in it doesnt seem practicable to create an objective test that measures such a subjective and virtually immeasurable emotion such as fear.Keep in mind how the law mentions that the only means of escape is the use of deadly force. until now though reasonable fear is such a subjective concept, it still has an impact in the courtroom compared to how self-defense laws used to be written. Before Stand- Your-Ground laws came about, defendants had the burden to show that their life and limb was echtly in danger. Light at 234 (2012). Now, in certain Jurisdictions, citizens have to only prove that they had a reasonable fear that their life and limb were at jeopardy, and that they believed that deadly force was immediately necessary to peel this threat. D, at 234. This amounts to a smaller burden of proof on the defendant, which is more challenging for the prosecution because disproving facts is a lot easier t han disproving perceptions. d, at 234. Is this a fair balance? The reasonable fear requirement is fair since it allows the state to shed an interrogative sentence into whether deadly force was used in a legitimate fashion without putting an exuberant burden on citizens to Justify their use of force that can be easily defeated by prosecuting attorneys. What about the duty to retreat? Should it still play a part n todays laws? Eric Del Bozo, Retreat Does Not personify Surrender Defensive Deadly Force in Dwellings After People v. Keen, Volvo 82 SST. Johns Law Review 360-381 (2008) points out that the duty to retreat should still play a part in these self-defense laws, oddly when retreat is a safe and reasonable resource that could save a lot of violence. He concedes, however, that one need not calmly evaluate exit strategies when faced with a pressing danger, for detached censure cannot be demanded in the presence of an uplifted knife. d, at 364. Also, it isnt reasonable to focu s in midnight at whether the defendant could have safely retreated, which is a reason why reasonable fear is appropriate in lay to focus on what the person knew at the time. d, at 364. The way retreat is treated as an option and the thoughts of the person using force varies among states and even Jurisdictions within those states some deemphasize the need to retreat while others focus more on the vindication of force and options for retreat. d, at 363-364.In 2006 alone though, between 10 and 15 states repealed their laws that required persons to consider retreat before using defensive deadly force. D, at 377. This might not forecast well in a case where a person shoots his neighbor over an argument over trash bins Del Bozo suggests that stories making headlines tend to be neighbors and acquaintances freely assaulting each other rather than smutty home invasions. d, at 377. However, he doesnt offer any statistics or empirical evidence that there is a trend in unjustifiable killing s due to these laws.Nonetheless, the duty to retreat still has merit to allow the full-page situation to be analyzed in court, and hold people accountable who whitethorn withdraw in senseless killings. d, at 378. The prosecution should be able to show that retreat was indeed a possible option out of a respect for human life there must be a balance between protecting the safety of some(prenominal) the assailant and the victim, but retreat should be looked at with the burden being on the non-aggressor. d, at 380. There are five different concerns that law enforcement government activity have concerning these new and more aggressive self-defense laws.One unintended consequence could be police officers since citizens Just have to claim that they have reasonable fear in order to use deadly force. d, at 175. On the other hand, Florists statute contains a revision which holds that citizens are not Justified in using deadly force against law enforcement officers as long as they are act ing in an official capacity, have identified themselves as a police officer, or the person using force should have reasonably known it was a law enforcement officer. D, at 173. Indiana struggled with this unintended consequence, but actually ended up ruling that citizens cannot reasonably use deadly force against law enforcement officers. Jon Laramie, Indiana Constitutional Development Debtors, Placements, and the Castle Doctrine, Volvo. 45 Indiana Law Review, 1049-1051 (2012). In Barnes v. Tate, 946 N. E. Ad 572 (2011), the Indiana Supreme Court stated that public policy disavows recognizing a common law right to forcibly remain firm unlawful police entry into ones home. d, at 1050. They also recognized that it isnt easy for citizens to recognize when a given police entry is lawful or not, that injury is high due to upgrades in police equipment, and citizens have other remedies for unlawful entries (civil litigation, police disciplinary hearings, exclusionary rule, etc. ) d, at 10 50. The court did concede that a person has the right to reasonably resist an unlawful entry, but this doesnt amount to a defense of eatery or other violent acts against law enforcement. D, at 1051. The court also claimed that most other states have followed suite in this decision in the pursuit of law enforcement safety. d, at 1050. Another concern is that the interpretation of these castle-type laws is in its infancy. Some believe that law enforcement pedagogy volition constantly have to adapt to changing views on these laws, and that it will be almost impossible for police officers to determine whether these new laws are being invoked applied properly. Supra, at 176.The next concern is that instead of Just avian to determine whether danger was imminent or there was a duty to retreat in a public place, police officers will now have to anticipate more self-defense claims. d, at 176. This will increase the investigative burdens on officers, and proving a negative is difficult w hen the evidence is in the men of the defendant. d, at 176. This concern is exacerbated by the fact that law enforcement agencies are often understaffed and are already overworked. d, at 176.Furthermore, police authorities are worried that these new laws will lead to a sort out of apathy and degradation of vigilance among officers. D, at 176. They may get used to seeing self- defense claims and may dig deep enough into every claim as these new castle-type laws call for, especially if both parties have criminal records. d, at 176. The last concern of law enforcement on castle-type laws are that citizens (a) will not be adequately aware of their right to use force in self-defense and (b) will be considered a deterrence by criminals who may now view them as more able to defend themselves. D, at 176. Overall, people might feel safer because they are given more latitude to protect themselves, but they may not since they might be worried about there with itchy trigger fingers. d, at 1 77. Also, there is a lack of empirical evidence that shows that the positive impacts outweigh the positive negative impacts. d, at 177. However, the ironic part is that we will not know if these types of laws will work unless we employ them uniformly on a generalize sample size (many states/ jurisdictions) and then evaluate them over time using threatening research methods. Ensure that citizens are able to defend themselves when they legitimately need to. Nobody said it would convey without any consequences at all. A legal issue with hose castle doctrine-type laws according to Elizabeth Mega, Deadly Combinations How Self-Defense Laws Pairing Immunity with a Presumption of Fear Allows Criminals to Get Away with Murder, Volvo 34 American Journal of Trial Advocacy 105-134 (2010), is that reasonable fear and immunity can combine to create a virtual bar on prosecution for self-defense cases involving an individuals castle. The state of Florida provides both a presumptive reasonable fea r clause and an immunity clause reasonable fear by itself can be rebutted by the prosecution at a later time, but immunity wont ever allow that to happen. D, at 108. Mega contends that such an incontrovertible conclusion is unconstitutional and puts law enforcement in an awkward position to determine immunity. d, at 108. Also, once immunity is granted it cannot be withdrawn and someone who was entitled to immunity cannot fight for it later on. d, at 109.However, if someone is outside of their home they have to prove the reasonableness of their use of force before being answer for immunity?this is presumed in cases involving the home and motor vehicles though. d, at 113.. Furthermore, at least in situations located at the defenders home, Florists law sakes it impossible to make the determination that the defenders use of force was unlawful. d, at 118. The law contains a provide that states that reasonable fear can be presumed when a person uses deadly force in the protection of th eir home?the police cannot make a probable cause determination. D, at 119. Florists law puts law enforcement in a situation where they have to make determinations on the spot that prosecutors would commonly make they have to make determinations of immunity and attempt to disprove a presumption rather than establish a case. d, at 120. Law enforcement normally investigate unlawful acts, but Florists law tells officers to presume that acts of violence within the home are lawful. d, at 121 . As for how to fix these statutory issues, Mega contends that they are beyond fixing with Just guidelines and require rewording.Police could change state so dependent on the guidelines that they may fail to see the big picture, defendants could end up in Jail trying to assert immunity, law enforcement may not understand the guidelines, and law enforcement have to engage in prosecutorial duties that they were not trained to do. D, at 130. Although immunity certain presents more problems, what about reasonable fear itself? Mega claims that the previous duty to retreat laws still allowed someone to use force, but only when there is no safe method of retreat. d, at 115.In this way, common law held the respect for life on a higher direct than the right to possess and use a gun. d, at 115. However, with the new castle-type laws individuals can now react violently with little incentive to try and diffuse the situation by safely retreating. d, at 115. The duty to retreat makes someone call up twice about sing force instead of harming someone before considering whether an actual threat exists. d, at 116. With these new Stand Your Ground and castle-type laws, individuals are authorized to act violently in the face of a perceived threat, which is very subjective and open to interpretation. D, at 129. In Florida, however, the law allows the state to prosecute individuals when probable cause is established that the force used was unlawful, at least outside of ones home. d, at 130. This type of provision who use deadly force in a senseless or bold manner without giving reasonable Hough into whether theyre really facing impending danger. As mentioned earlier though, in the agitate of the moment peoples perceptions and their ability amount to think clearly in these intense situations will vary. How does reasonable fear play out in the context of a control panel trial?Stay Lee Burns, Demonstrating Reasonable Fear at Trial Is it Science or Junk Science? Department of Sociology, Loyola Martyrdom University, Los Angles, CA 107-131 (2008) examined one murder trial in depth that involved reasonable fear. In this case, the Maddened brothers were charged and invoiced of first degree murder for shot-gunning their parents in their own home in August 1989. d, at 109. During the trial, they confessed to parricide but claimed they held reasonable fear because of their foregoing sexual abuse by their father and acted in self-defense Justification defense). D, at 110. The Jur y deadlocked at the first trial, which indicates the ambiguousness that reasonable fear can have at trial. d, at 129. The defense proposed expert testimony that would show that the abuse the defendants underwent altered their mental state at the time of the killings because heir susceptibility to fear and perception of imminent danger were heightened. d, at 112. U Timely, the guess did not allow expert testimony pertaining to what happened in the Maddened brothers situation, but could attempt to generalize prior research on fear perception.Although there has been research on the limbic system, the part of the brain that processes fear, for the last years the results are far from conclusive and there is no test available that can show what the Maddened brothers fear levels were at the time of the killing or whether their susceptibility had indeed been heightened because of trauma. d, at 118- 127. Social science is only able to provide statistics and the likelihood that the Maddened brothers would act a certain way in a given situation. d, at 122.There is a blood test available that can give insight into what a persons level of fear is, but the sample would have to be taken right at the moment of the crime (not feasible). d, at 124. This case illustrates the tension between social science and the juridic system that requires facts to relate to the particular case at hand. d, at 128. It came down to what the Jury felt was reasonable fear, and how much they thought the expert testimony applied to the Maddened ease?its no surprise that the Jury ended up deadlocked. D, at 128-129. In conclusion, the reasonable fear requirement is fair since it allows the state to make an inquiry into whether deadly force was used in a legitimate fashion without putting an excessive burden on citizens and giving too much of an advantage to prosecuting attorneys. Although duty to retreat shouldnt be stringently imposed or evaluated in hindsight, it is still applicable in situations where violence could have been easily avoided by practically walking away.While there are legitimate concerns such as Alice safety in no-knock searches with these more aggressive self-defense laws, the sad fact remains that little empirical evidence is out to date that shows any negative or positive trends associated with these laws. In addition, these laws and their interpretation are still in their infancy and are written differently among the states and their Jurisdictions. A legal issue that may not be empirically measurable, however, is how reasonable fear can be paired with immunity to create a bar on prosecution of those defending their home perhaps too readily.These people should burden of proof that can easily be discredited. Additionally, this presumption would leave police officers with the difficult task of making determinations on the spot that would normally be left to prosecuting attorneys. As for immunity, citizens should be granted immunity from civil litigation i f their use of deadly force was Justified they shouldnt have to be mired with legal action from the aggressor after theyve already been in court.The Maddened case illustrates the limitations of science to prove reasonable fear in a court setting, and can only offer potential generalizations and statistics. Bottom line, reasonable fear ends up getting hardened by Juries, which ay not be that easy or uniform. Overall, the new and more aggressive self-defense laws are good for public policy with the exception of the presumption of reasonable fear in situations involving defending ones home.These laws necessarily give citizens more latitude in defending themselves without an undue burden of having to sit there and think about whether they should retreat or fear of future civil litigation. However, those who are inclined to resort to violence in the face of any perceived threat need to justify their actions in order to prevent senseless killings. They should only have to how that they h ad reasonable fear without a heavy burden of proof that prosecutors can easily defeat, which could be the beyond a reasonable doubt standard.An understandable concern is that these new laws will put a further burden on an already stressed and backlogged criminal Justice system, but we cannot put police officers in a position to try to make these determinations on the spot. We also cannot allow potential senseless killings to go unchallenged. Omitting the presumption clause and putting a little more accent on retreat options can better balance the defenders right of safety and the aggressors culpability.