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View Diary: The 'pro-life' bill to legalize murder (124 comments)

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  •  Imminent applies to threat of harm (1+ / 0-)
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    It means that the statute only applies when the threat of great personal harm is going to happen right now, literally, without any intervening time to find or create any other alternative for action than homicide. If you have so much as a few moments to think before acting or to plan, it will not be legally  imminent and you will have had the opportunity to premeditate, such as figuring out how to do the killing, and the statute no longer applies to you.

    I can premeditate for hours that if that thug lurking in the alley attacks me or my wife, I will respond, with deadly force if necessary.  It may complicate my claim of self-defense or defense of another, but it does not negate it.

    I most likely need to meet other preconditions in many states to successfully claim self-defense, but your characterization of how "imminent" works is not correct.

    What it means is that I cannot act against the thug even if he has sent me a reminder note to come to the alley at 11:45 on the 17th of February for my scheduled mugging.  His violent act towards me or my life has to be imminent.   It does not have to come as complete surprise.  (Domestic abuse seldom does - as an example.)  

    I have to wait.  Because maybe he'll cancel the appointment.  Maybe he'll decide to just yell at us instead.  But if he is about to strike and that strike would kill, the "imminent" is now satisfied and my preparedness and "premeditation" does not automatically take away my self-defense claim unless I somehow lured him into attacking me with the intent that I can them kill him.  

    It also changes things if it is a threat to fetus carried by another person who has actually consented to, scheduled and actively participated in the creation of the circumstances that would, under this proposed amendment, constitute the sufficient threat to the fetus to "justify" my commision of a homicide to prevent it.

    This amendment would make such a killing justified, lawful.

    If health care is not basic necessity, try living without it.

    by Into The Woods on Wed Feb 16, 2011 at 11:54:03 AM PST

    [ Parent ]

    •  I've only practiced 40 years, but don't (0+ / 0-)

      think the law works as you propose, at least in the two states I practiced in. What I'm saying is practical experience, not legal advice.

      As to showing up for your mugging and killing somebody once you do, don't try this to defend from that.

      Your choices always figure into this. You always had the choice to come or not to come, to be armed or not to be armed, to fight or not to fight against being mugged.  If you voluntarily put yourself in an avoidable situation which has the possibility of death for another by your hand,  you are deep into premeditation and out of this statute.

       "Imminent' is for those relatively rare situations where the doer does not have the time to do anything else, having essentially had no warning of the circumstance arising before it did, and he had to choose without alternatives or the time to think of them,  to do the act which kills, or not. In an abortion situation,  the doer could knock the  doctor over, or knock the instruments out of his hand,  or steal the instruments, or try if he wants to consider a kidnapping charge, pull the woman out of the facility. Even on imminence, you don't get to pick killing where there are other alternatives.

      If you throw the kidnapper off the roof in the process of pulling your child outof his arms so he won't throw the kid off the roof, that's imminent. If the unexpected mugger leaps around the corner and swings a knife at you or your family member or employee (in the case of this statute, there is a limited list, and BFFs aren't  or may not be on it depending on that last 'or'), that's imminent. Under your theory, two gangs could come to a fight intending to kill, but could have the excuse of this statute because the imminency test was met simply by their showing up.

      And 20-20 hindsight applies, here, as the belief of the doer that he meets the limitations of the statute must be' reasonable', which word unaccompanied by others means objectively reasonable, one which others will agree was reasonable after the fact, which can be tricky, since this objective reasonableness is also a creature of the law like the assumption that the doer knows the exact limitations of justifiable homicide as written in a lawbook he probably never heard of. Including the law much commented on here which specifies in SD that an abortion is not that level of great bodily harm or death which makes a homicide done to prevent it justifiable, and the further specification that an abortion in SD is not felonious.  Now if someone were swinging a torch at a pregnant woman, you might have an argument, but not here.

      •  There is no requirement of (0+ / 0-)

        "I did not have time to think" in any self-defense claim I have ever seen.

        And whether something is "avoidable" is very, very subjective.

        Domestic abuse is thought of by many to be avoidable.  (Why doesn't she just leave?)  But the hard realities are different and more complex.  

        And reasonableness is not measured in 20-20 hindsight as you should know.  It is measured by what a reasonable person would believe knowing what they knew at the time given all the facts and the circumstances - and even that can be impacted by special circumstances and perspectives of the individual.

        As I said (and you ignored) there are probably other conditions that would apply before a claim of justifiable homicide could be made, but thank you for pointing some of those other conditions out.

        That still does not implant some sort of "no time to think", "no warning", "no alternatives" set of pre-conditions on a self-defense claim.  While they may play a part in judging whether a person met all the conditions necessary in a given state to qualify for a claim of self-defense or defense of other,  that kind of OMFG instant decision is not the absolute prerequisite you seem to be describing.

        And as murky as all that can be when it is self-defense, it becomes even more murky when it is defense of a fetus contained within a third party over whom the "defender" has no control.  

        As I said, it's not open season on Drs, but it is far from clear that it has as little impact as you are suggesting.

        If health care is not basic necessity, try living without it.

        by Into The Woods on Wed Feb 16, 2011 at 04:03:11 PM PST

        [ Parent ]

        •  Some errors. (0+ / 0-)

          1. Twenty twenty hindsight is what reasonable is about. Unless it is objectively reasonable, not the subjective oops of the Kansas law on different wording, it is not reasonable at all. And the ones who determine reasonableness are not the doer and his lawyer but the jury. All this statute said is 'reasonable' which means the subjective view of the killer is not the test, but what the reasonable person would do or think in that position.

          2. Please eliminate self defense from your discussion. That is not the issue here. Justifiable homicide, if any, and self defense are entirely different issues and defenses. And even self defense requires retreat if it is possible. The question under discussion in any event was the word and cocept of imminent, a timing issue.

          •  You define 20-20 hindsight differently (0+ / 0-)

            Hindsight seems to indicate that I apply what I know now about what was actually occuring back then, instead of judging the reasonableness  of a person's actions based on what a reasonable person would believe back then, at that time, if confronted with what I knew and saw at the time.

            Those are two very different things and application of a "hindsight" standard in this kind of circumstance would be highly irregular.

            This is clearly a law based on the concepts of self-defense and its extension to defense of others.  The SD case law or other statutes that might further define the conditions under which both exist may be the "lawful" in "lawful defense".  Some states call it one thing.  Some call it the other.    

            Not being from SD, I don't know what other conditions may attach.  Which I belive places us in the same condition.

            If health care is not basic necessity, try living without it.

            by Into The Woods on Wed Feb 16, 2011 at 04:28:26 PM PST

            [ Parent ]

          •  You seem to equate "objective" with "hindsight" (0+ / 0-)

            They are not the same thing.

            The following is a fairly decent explanation of the general concepts and I find no reference to hindsight.  


            If health care is not basic necessity, try living without it.

            by Into The Woods on Wed Feb 16, 2011 at 04:36:58 PM PST

            [ Parent ]

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