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Monday, July 19, 2010 09:16

Killing in Self-Defense
The right of self-defense is on the books in every state, but it s rarely used as a courtroom defense. A recent Supreme Court ruling, however, may have given self-defense advocates more ammunition. Even now, Ziad Tayeh has a hard time explaining how a late-night stop for a bite to eat ended in a fight for his life. Early one October morning in 2006, Ziad Tayeh, then a 23-year-old community college student in Brooklyn, New York, hopped in his Lexus SUV and drove into midtown Manhattan to grab a plate of chicken and rice at a popular late-night food cart on Fifth Avenue and 53rd Street. He had just finished ordering when, according to Tayeh, three youths, including Tyrone Noel Gibbons, a 19year-old from New Jersey, tried to cut in line. Angry words were exchanged. The dispute moved from the cart to their cars. The men spilled back onto the street two blocks later when Tayeh says Gibbon s Toyota Yaris boxed him in. The men demanded he get out. He did. I pulled a knife out and I told them to back up, Tayeh told The Crime Repor . They called my bluff. One of the three men came at Tayeh with a knife, and held it to his neck. Tayeh swung his arm, the knife still in his hand. In the ensuing melee, Tayeh struck Tyrone in the torso. Then Tayeh jumped in his car and drove away. An officer picked him up 30 blocks later. Grilled by investigators, then the district attorney, Tayeh claimed he had fought back in self-defense. He learned only after hours at the precinct that Gibbons had died. Tayeh was charged with second-degree murder. No one understood how scared I was, he remembered. Three years later, a jury accepted his self-defense argument and found him not guilty of manslaughter. Tayeh was fortunate. While all 50 states have laws that protect the right of self-defense, this right appears nowhere in the U.S. Constitution. And the difficulty of applying the laws to specific places, circumstances and weapons has made such a defense a risky, and therefore rarely used, tactic in courts across the nation. Even more rare is a case in which a claim of self-defense leads to a not-guilty verdict. Supremes Weigh In
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Last month, however, advocates of the self-defense argument received a boost from none other than the U.S. Supreme Court. Writing for the majority in a landmark ruling on gun rights, U.S. Supreme Court Justice Samuel Alito declared that self-defense is a basic right, recognized by many legal systems from ancient times to the present. The 5-4 Court ruling, in McDonald v. Cit of Chicago, ruled unconstitutional Chicago s 1982 ordinance prohibiting citizens from possessing handguns for private use, even in their homes. Since handguns are the weapons most preferred by citizens trying to defend themselves in their homes, banning handguns in the home fetters the right of self-defense, the court reasoned. Though the Supreme Court s ruling is unlikely to directly impact the laws of self defense, it lays the groundwork for subsequent lawsuits that seek to define, and likely widen, the laws of use and carry, says Ilya Shapiro, a senior fellow at the Cato Institute, a libertarian think tank based in Washington D.C. These cases, Shapiro says, may in turn shape reshape the boundaries of the kind of force individuals can use to defend themselves. In evaluating future gun regulation, self-defense will be a very important part. That s what the right to keep and bear arms is about, says Shapiro. It s about protecting life, liberty, property. It will be up to the government to justify restrictions to those rights. But while the government sets the laws in courts, it is law-enforcement, prosecutors, judges and juries who ultimately decide when using force is justified, and when it is criminal. That s one reason why the McDonald decision may not necessarily make it easier to litigate self-defense cases, argues Lisa J. Steele, a defense attorney who has written a brief on building a self-defense case for the National Association of Criminal Defense Lawyers. Such cases remain a big gamble for the defendant, she explains. You re saying I did this, I meant to do this, and I was justified in doing it. J ifiable Homicide

No one knows exactly how often Americans use guns or other weapons in self-defense. A 1995 phone survey by the U.S. Department of Justice estimated 1.5 million people may use guns in a defensive manner each year. The results were similar to a study done the previous year by Gary Kleck, a criminologist at Florida State University. Only rarely does self-defense of any kind result in a homicide. The Federal Bureau of Investigation reported 245 justifiable homicides committed by civilians in the 14,180 murders recorded in 2008, the most recent year for which statistics are available. These numbers, reported by local law enforcement to the FBI, include only homicides that take place at the same time as a felony, like a store clerk who kills while a robbery is in progress, or a burglar who is shot while breaking into someone s home. The specific nature of that category may leave hundreds of homicides committed in self-defense, like the case of Ziad Tayeh, uncounted. There could be three times as many total defensive homicides as the FBI numbers show, says Professor Kleck, who researches crime and gun control. He bases his estimate on local studies with more detailed breakdown of the defensive homicide category. Few such self-defense homicides make it into court. Police dispatch straightforward cases early by not pressing
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charges. District attorneys and grand juries may filter cases by choosing not to indict. This discretionary power makes it difficult to count how many self-defense cases arise each year. It s really the difficult, borderline cases that go to trial, says Kleck. But using the self-defense doctrine, a defense to a homicide charge is considered a high-stakes bet. Those who choose to claim they killed in self-defense could walk out vindicated, or could face decades in prison for manslaughter or murder. Self-defense cases are also a trial of character. To decide if the homicide was justified, a jury passes judgment not only on the defendant, who claims he was a victim, but also on the deceased, who the defense argues was in fact the aggressor. Dangling in he Wind

Andrew Hoeft-Edenfield, who was convicted of second-degree murder, which he said was in self-defense. Photo courtesy of Hoeft-Edenfield family. If the court or jury does not agree, notes defense attorney Lisa Steele, you re dangling in the wind. That s how, in May 2008, Andrew Hoeft-Edenfield, then a 20-year-old community college student was left after a birthday party at an apartment just east of U.C. Berkeley s frat row ended in the fatal stabbing of Christopher Wootton, a 21-year-old Berkeley student weeks away from graduating with a degree in nuclear engineering. At the trial, Hoeft-Edenfield s lawyer, Yolanda Huang, argued this was a case of self-defense. She claimed that Wootton and a group of his frat brothers from Sigma Pi had ganged up on her client and his friend, outnumbering them in a fight. It was in the dark, very late, in an enclosed area, and people were pummeling him, Huang said, adding that Hoeft-Edenfield had pulled a knife in self-defense. Prosecutor Connie Campbell painted it differently. She told the jury that Hoeft-Edenfield, was into the thug life, charging that he had gone out looking for a fight that night. The trial centered on the characters of two young men: a U.C. Berkeley star that the defense said had a history of violence versus a community college kid the
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prosecution said killed intentionally and without remorse. On May 13, 2010, they found Hoeft-Edenfield guilty of second-degree murder. He has been sentenced to 16 years to life, and currently being held at San Quentin Reception Center just outside San Francisco. His lawyer says he will appeal. Not surprisingly, his family feels he was given a bum rap. I feel like my son was really defending himself, said Ellen Hoeft-Edenfield, 62, who points out her son and his friend were outnumbered three to one. He was put in a situation where he really didn t have any other choice. But Wootton s fraternity brother Ryan Rudnitsky, 24, disagrees, What do you have a knife for? he wonders. In some small inkling way, [Hoeft-Edenfield] had intention to use it. . S and Yo r Gro nd Had Hoeft-Edenfield been tried in Florida, things may have turned out differently. While the right of self defense is fairly standard across the states, some recent laws offer individuals the right to use force more freely inside and outside the home. In order to use force in any state, the threat to life or limb must be imminent. There must be no other choice but to resort to using force. That force, when used, can be no more than absolutely necessary. The law seems simple, but each facet presents hard questions. How imminent was that danger? What is necessary force? Was there really no other choice but violence? Self-defense laws have always allowed people to meet force with force if confronted with danger in their homes. Many jurisdictions once had a duty to retreat clause for incidents outside the home that required those who faced danger to try to get out of the situation before resorting to violence. In 2005, a Florida law eliminated the duty to retreat, allowing Floridians to meet force with force anywhere they have a legal right to be. Unlike California, which also has no duty to retreat, Floridians may use lethal force in and outside their homes. Thirty states now have stand your ground legislation that eliminates to the duty to retreat. The legislation has been supported by the National Rifle Association (NRA) and other gun-rights activists who advocate for broader Second Amendment rights, often basing their arguments on the doctrine of self-defense. I see it as kind of a moral victory for the people who defend themselves, says Massad Ayoob, a police captain in New Hampshire who has worked as a firearms trainer for police and civilians. To Ayoob, the right to bear arms, including guns, brings parity to life threatening situations. If the criminal has a gun and the victim does not, that s about as bad as it can get, he says. But Ayoob also admits that the race, class or circumstances in which the victim finds himself may effect the outcome of a self-defense claim in court. He pointed to the case of Ronnie Barlow, a young black man from Arizona who was in 1990 convicted of second-degree murder for what he said was the self-defense shooting.
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He said he was attacked by 21-year-old Robert Lockwood, a white man with a long criminal history and the son of a local judge, but the jury didn t buy it. The judge, however, saw it differently and reduced the jury verdict to manslaughter. Two years later, Barlow was released. Race and Self-Defen e In legal circles, one of the most talked about components of the McD ald case was Justice Clarence Thomas opinion in the case. While he voted with the majority, he offered a controversial 56-page interpretation that framed Second Amendment protection in terms of racial history. In the Reconstruction Era following the Civil War, black citizens in the South were tortured and killed for a wide array of alleged crimes, without even the slightest hint of due process, Thomas writes. The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence. The argument led to comparisons to Malcolm X in the Washington Post, and a general sense that the opinion was, legally and rhetorically, a bold step for the oft-silent justice. But it also implied that while the right to selfdefense is ancient, our perceptions of the proper use of force in self-defense can be a product of our historical moment. To defense attorney Lisa Steele, there s no question about that. There s class issues built into this. There s race issues built into this. It gets really complicated really quickly, she says. That s because there s a tricky question at the heart of any determination of self-defense: what would a reasonable person have done? The reasonable man ---or now, reasonable person doctrine---is the cornerstone of a self-defense case, explains Cynthia Lee, a law professor at George Washington University. Juries must decide if the sequence of events was reasonable not only in the defendant s mind, but from an outside perspective. The reasonableness requirement is imposed to lend an air of objectivity to the defense, says Lee, author of Murder and the Reasonable Man, a study of how beliefs and social norms play out in criminal cases, including self-defense trials. The problem is of course that reasonableness is in the eye of the beholder, she says. What s reasonable to one person is not reasonable to another. In recent years, the courts and state legislatures have opened up more room for questions as to what constitutes an imminent threat, and if a reasonable person must try to flee before using force. Increased legal acceptance of the battered person s syndrome in the early 1990s allowed juries to hear how an abused personoften, a womanmight feel she has no choice but to kill to save her life. This challenged the longstanding notion that the threat to one s life had to be imminent. A battered person may, some believe, kill because they perceive the abuse to be life-threatening even if it isn t happening right then. Like stand your ground laws, battered person defenses, show how societal views can come into play in the longstanding right to self-defense, but nothing may indicate that better than the juries themselves.
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Self-defense cases offer a jury a lot of leeway to decide what they believe is reasonable and just, regardless of the law. What the law on the books requires and what happens in action may be two different things, says Lee. Prosecutors, cops, jury members. We re all people, says Lee and stereotypes about certain groups affect us all. The McDonald decision means that courts throughout the country will grapple for years with interpretations of the Second Amendment and the right of self-defense. But when the cases make it in to court, justice may depend less on the letter of state law than on the state of mind of the 12 people seated in that jury box. Lisa Riordan Seville is a freelance contributor to The Crime Report based in Brookl n, New York. Email this post

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Posted b investigator M Tuesda , September 27, 2011 01:36 It has been indicated more than once that the justice/legal system is a broken system, this has recently been proven true as with the case (Troy Davis) it has also been indicated in this article that people are human, and this is also true, and sometimes as humans mistakes are made and or lies are told! And sometimes this proves true with Jurors and or Prosecutors! I always wonder how victims become suspects in self defense cases! Case and point, on moe than one occassion, I have been robbed at gun point and knife point, and I thank GOD that these
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people didn t decide to pull the trigger or stick it to me with that knife or else I wouldn t be telling this story, even more greatful, that I didn t have anything to protect myself or this story would be different! It s sad how in America we cannot feel safe with defending our selves in our homes or in the mean streets which we live! How ever I do know some one who ended up on the wrong side of the self defense law. It was in the 80 s or so and crack cocaine was the choice for many, and as a result robberies in the D.C. Nations Capital were on the rise and at any given time in any given place someone with out warning could be robbed, and as a result, the victim turned inmate was targeted for robbery, while the real suspect had a weapon, but what the suspect/culprit failed to realize is that the person who he decided to rob was good with his hands, that s right a self defense weapon was not used this person died as a result of some one s bare hands, any way a dead man can t talk, so the victim went to court/trial and was giving a life sentence, where he is still serving today, this story has always bothered me since it happened, and according to some, D.C. doesn t have or didn t have a self defense law, which doesn t make any sense at all, because every body has a right to defend themselves, with having said this much, I am contemplating reevaluating this case in efforts to have the young man freed, because in my opinion this was not Justice, I mean when some one decideds to rob some one they need to think about the consequences that could result in their own death, and that s not the victim s fault and they should not be held accountable for defending them selves. Any disinterested parties who are willing to work with me and or who cares about these types of issues are encouraged to contact me about this matter! Thanks Posted b anne drummond Saturda , August 14, 2010 01:03 I am the mother of the girl Andrew dated for over one year before the stabbing took place,(the stabbing @ Cal May 2008). I am a Mom living in North Berkeley and have raised 5 kids.married 25 years. I was born & raised in North Berkeley as well. Andrew carried that small knife everywhere he wentfor a year or longer before that stabbing ever took place. Andrew whittled with that knife. Andrew peeled apples for my younger kids with that knife. Andrew had been a Boy Scout for many years (in the past). I was ano overprotective Mom and Andrew respected my rules always when visiting us and my daughter.we all went to Tahoe together and Andrew was nervously insisting my 6 yr old keep his helmet on when they were all sledding together. Andrew was a good kid and a safe kid. Yes he loved hip hop and rap music but he also loved rock music. He was a normal Berkeley Kid and I am sick about what has happened. I was busy caring for my Dad in the hospital with a dtroke and then our son got bone cancer right after my dad died..I wish someone in court would have pointed out that Drew always had that knifehe used it for things around the house, camping etc. Andrew was a peaceful kid who went out of his way to avoid drama or fights..especially because Drew was over 6 ft and always had my beautiful daughter on his arm, he was challenged by guysand I remember clearly, Drew AVOIDED conflict because he worried for his Mom who is fighting cancer. He never wanted to bring more problems for his family and voiced that to me. I hope and Pray that justice can be served for Andrew. Yes a young life was lost. Very tragic. But there was a huge frat party going on with very drunk angry college boys..and just a few of Andrews crowd were surrounded by many.I wish this would be looked at more closely. Just my thoughts. My prayers are for ((Chris)) and ((Andrews)) families. Posted b Steve G Frida , Jul 30, 2010 10:25 http://www.in.gov/legislative/ic/code/title35/ar41/ch3.html Indiana s self-defense law, IC 35-41-3-2, is the most precisely written law in any State, yet there is a county
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Court, suppressing a unanimous not guilty verdict in a self-defense case. http://plaindealer-sun.com/main.asp? Search=1&ArticleID=21&SectionID=3&SubSectionID=42&S=1 While the jury was considering Gilmore s fate, all of its members agreed that the defendant was not guilty of murder, according to the jury foreman. pg 929 transcript / Final Instructions from judge Webster The question of the existence of an apparent danger and the amount of force necessary to resist force can only be determined from the stand point of the Defendant at the time and under the then existing circumstances. pg 930 Actual danger is not necessary to justify self defense. The question of the existence of such danger, the necessity or apparent necessity to act as well as the amount of force necessary to employ to resist the attack can only be determined from the standpoint of the accused at the time and under all the then existing circumstances. There has been evidence introduced in this case that the accused was exercising his right of self-defense. -The judge points out in final instructions: There has been evidence introduced in this case that the accused was exercising his right of self-defense. So what nullifies THE LAW? The Judge refuses to dismiss this case, even though the State s expert forensic expert debunked the State s fabricated scenario and his own instructions eliminate all charges. State law forbids legal jeopardy of any kind whatsoever for protecting the person, then the Judge says the defendant was defending himself. Posted b Cind Monda , Jul 19, 2010 10:15 Thank you for the 2009 Florida Statutes link. Good thing Florida eliminated the duty to retreat, allowing Floridians to meet force with force anywhere they have a legal right to be. And that Floridians may use lethal force in and outside their homes. We SHOULD have a right to protect ourselves! Self Defense Products Florida

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