(mailed and posted, both to avoid an NSP bug and because
I'm not certain this has sufficient verifiable legal content
for the newsgroup)

Robert E. Lewis wrote:

But this left me wondering: if trying to get into my car and to smash the window while I'm stopped and inside my car is such an aggressively threatening act that I would have been justified in using deadly force to protect myself, does it constitute criminal assault? The police officers didn't specifically ask if I wanted to file assault charges against the man, but implied that the account of his behavior could lead to more serious charges if he decided to fight the PI charge, and my concern was mainly that he be taken off the street until he sobered up.

I am not a lawyer, but neither are the police officers in question.

I havn't studied the statutes in your state, but the general rule
would be: You must retreat if a reasonable person would do so,
and if you do not allow a future felony by doing so. If, for
example, there was a third undrivable car, and the drunks were
to attack THAT vehicle, you would be allowed to defend the
occupants of that car. Details as to exactly when force is
allowed and when deadly force is allowed depends highly on
state law and on the facts.

Arthur L. Rubin wrote: I am not a lawyer, but neither are the police officers in question. I havn't studied the statutes in your state, but the general rule would be: You must retreat if a reasonable person would do so, and if you do not allow a future felony by doing so. If, for example, there was a third undrivable car, and the drunks were to attack THAT vehicle, you would be allowed to defend the occupants of that car. Details as to exactly when force is allowed and when deadly force is allowed depends highly on state law and on the facts.

I think it prudent to retreat if possible, but the duty to retreat may not
exist according to an article I recently saw. This link is a short summary
of a report on 92 SCOTUS decisions relating to firearms, 2nd amendment and
self defense. Sadly the whole article isn't available until next month, but
there is a relevent bullet point:

http://www.sierratimes.com/03/08/10/ar_gun_laws.htm

Here is the bullet point:
- Armed self defense with personally owned firearms is recognized and
supported in more than a dozen cases, is a distinct right of American
citizens, and an ancient "duty to retreat" is not obligatory. >>

I'm also skeptical that we, as citizens, have a duty to not retreat if our
doing so would result in a future felony. I taught a class that had an
element of self defense in it. After consulting with the Casper, WY police
and an attorney, I taught that we citizens do not have such a duty to
prevent felonies that may occur due to our choosing not to intervene. My
information is over 20 years old and of course, not applicable to every
locale. I personally wouldn't hesitate to use deadly force in protection of
myself or my family, but would so hesitate to intevene in third party
disputes unless the balance of power was gross - such as a strong man
attacking a child or a wheelchair bound senior.

-paul
ianal

(mailed and posted to avoid NSP bug; please reply in newsgroup)

Paul Cassel wrote: Arthur L. Rubin wrote: I am not a lawyer, but neither are the police officers in question. I havn't studied the statutes in your state, but the general rule would be: You must retreat if a reasonable person would do so, and if you do not allow a future felony by doing so.

<<snipped>> some of my text.
I think it prudent to retreat if possible, but the duty to retreat may not exist according to an article I recently saw. This link is a short summary of a report on 92 SCOTUS decisions relating to firearms, 2nd amendment and self defense. Sadly the whole article isn't available until next month, but there is a relevent bullet point: http://www.sierratimes.com/03/08/10/ar_gun_laws.htm Here is the bullet point:- Armed self defense with personally owned firearms is recognized and supported in more than a dozen cases, is a distinct right of American citizens, and an ancient "duty to retreat" is not obligatory. >>

It may be a matter of state law -- common law is unclear. I THOUGHT
common law was that there is a duty to retreat if there's noone else
to protect, but I could easily be wrong.
I'm also skeptical that we, as citizens, have a duty to not retreat if our doing so would result in a future felony.

No -- there's clearly NEVER a duty NOT to retreat, unless possibly
you're in law enforcement or there is a separate duty to protect
someone or something. I didn't intend to imply that.

Arthur L. Rubin wrote:
<snip previous discussion>
It may be a matter of state law -- common law is unclear. I THOUGHT common law was that there is a duty to retreat if there's noone else to protect, but I could easily be wrong.

I thought so too until I read that article. Sadly the article I read and
posted the bullet point to summarizes the whole article which will be
available no sooner than next month. The whole article should have details
including, I expect, a case or more where the point was covered in a SCOTUS
decsion.
No -- there's clearly NEVER a duty NOT to retreat, unless possibly you're in law enforcement or there is a separate duty to protect someone or something. I didn't intend to imply that.

I am skeptical that the police have a duty to protect. Their function is to
investigate, not protect despite the pretty sayings police departments have
about them today. For example, if you see a lurker outside your house and
note he has what seems like a weapon (rifle, pipe, stick or something) and
you call 911 and say you fear for your life due to this fellow seeming to be
looking for a way to break in. The police do NOT respond in any way. A half
hour later, plenty of time for the police to show up if they were so
inclined, the fellow breaks in, beats you, robs your house and kills your
wife. Can you sue the police department for not showing up when notified?

The answer is no, you cannot, although here where I am and ready to be moved
yet again, I can't give you the cites. I'd very much like to hear from a
policeman or a department on this issue of if they feel they have an
absolute duty to protect. I'm sure we don't have such a duty or do we?

Let's put weapons aside for a minute. What if we saw a baby crawling down
the middle of a busy street. Do we have duty to scoop the baby up if doing
so doesn't present any hazard whatsoever to us? I'm unsure. Do you know?

-paul
ianal

Paul Cassel wrote: I am skeptical that the police have a duty to protect. Their function is to investigate, not protect despite the pretty sayings police departments have about them today. For example, if you see a lurker outside your house and note he has what seems like a weapon (rifle, pipe, stick or something) and you call 911 and say you fear for your life due to this fellow seeming to be looking for a way to break in. The police do NOT respond in any way. A half hour later, plenty of time for the police to show up if they were so inclined, the fellow breaks in, beats you, robs your house and kills your wife. Can you sue the police department for not showing up when notified? The answer is no, you cannot, although here where I am and ready to be moved yet again, I can't give you the cites. I'd very much like to hear from a policeman or a department on this issue of if they feel they have an absolute duty to protect. I'm sure we don't have such a duty or do we?

Protect how? Absent a violation of law, the police can legally do nothing,
although they often try.

I once was flagged down by a woman who had jumped from her car after being
struck by her boyfriend. After much discussion, she declined to file
charges. Trying to make the best of the situation, I told the boyfriend:
"Listen up. You touch that woman again and you'll have ME to deal with. Is
that clear?" He said (honest-to-God) "You're full of it. As soon as you get
out of sight I'm gonna beat her so bad she won't be able to lay down."

So I said: "Go in peace, my children," and left. In the case above (and
mine), there is no visible violation of criminal law on which a cop can act.
Let's put weapons aside for a minute. What if we saw a baby crawling down the middle of a busy street. Do we have duty to scoop the baby up if doing so doesn't present any hazard whatsoever to us? I'm unsure. Do you know?

There is no mandatory "Good Samaritan" law of which I'm aware. There are,
however, laws and situations in the reverse. For example, taking in a
wounded eagle will get you in really big trouble. In another case, a Texas
state trooper gave mouth-to-mouth to a drowning victim who, thanks to the
first aid, survived the drowning but died later of pneumonia. The subsequent
civil case claimed wrongful death because the state trooper must have had a
lung infection. Trooper lost.

Paul Cassel wrote: Can you sue the police department for not showing up when notified? The answer is no, you cannot, although here where I am and ready to be moved yet again, I can't give you the cites. I'd very much like to hear from a policeman or a department on this issue of if they feel they have an absolute duty to protect. I'm sure we don't have such a duty or do we?

Police do have a broad duty to protect. It's articulated in different
ways among various states. In Texas, the duties are defined in the Code
of Criminal Procedure. In brief summary, officer shall:

Intefere to prevent or suppress crime.
Arrest violators in every case authorized.
When informed of threat against self, person or property, to prevent the
injury.
To act when a person is about to injure self, a person or property.

There are specific mandates with regard to family violence, family
disturbance, and the enforcement of protective orders with stronger
language as to the duties of officers.

Domestic violence situations being addressed strongly and specifically,
including an unusual statutory statement of legislative intent, we
presume we are potentially liable for failures to perform in a
reasonably vigorous manner. Within, of course, available resources.
Let's put weapons aside for a minute. What if we saw a baby crawling down the middle of a busy street. Do we have duty to scoop the baby up if doing so doesn't present any hazard whatsoever to us? I'm unsure. Do you know?

Here, at least, a citizen who has not placed himself in a position of
deliberately taking on responsibility for keeping a child from danger or
who has a legal or statutory responsibility, has no criminal liability
for failing to act.

Likewise, citizens have no duty to protect property.

--
Gerald Clough
clough@texas.net
"Nothing has any value, unless you know you can give it up."

"Paul Cassel" <pcassel1@earthlink.net> wrote in message
news:<ov0tjvo07m624iijndev08mag24ei7d4fs@4ax.com>...
<snip previous discussion>
I'd very much like to hear from a policeman or a department on this issue of if they feel they have an absolute duty to protect. I'm sure we don't have such a duty or do we?

Part of the problem is what you mean by duty -- a moral duty, or a
legally enforceable duty to which adverse legal consequences will
attach for its breach.

The cops have a moral duty to "try" to protect the public, in a
general sense. They generally take an oath to preserve and uphold the
constitution and laws and to protect the public peace and safety to
the best of their ability. That's not the same thing as being
legally liable if, in a particular instance, they "fail" in that
someone within their bailiwick falls victim to a criminal.

In all USA jurisdictions AFAIK there is no _enforceable_, _legal_ DUTY
to any particular citizen, arising from negligent performance of a
safety officer's duty owed to the general public, UNLESS the officer
is aware of the particular person's peril AND has assured that
potential victim that they will look out for him or her specifically
(e.g. a person under police protection as a witness).
Let's put weapons aside for a minute. What if we saw a baby crawling down the middle of a busy street. Do we have duty to scoop the baby up if doing so doesn't present any hazard whatsoever to us? I'm unsure. Do you know?

If there were such a duty then every single bystander who did NOT come
to the baby's rescue would be guilty of a crime, or at least an
actionable tort. That is not the rule. In all USA jurisdictions
AFAIK there is no _legal_ "duty of rescue" imposed on a bystander to a
person in danger.

Of course, by most foax' lights, there would clearly be a _moral_ duty
to save the kid, and the cad who just stands by may well come under
severe public disapproval, shunning, etc. but no one would be able to
sue him and collect damages for his failure to offer to come to the
kid's rescue.

--
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
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