Given that the burglar is not around to testify to the contrary, what evidence can the prosecutor bring muster against the assertion of an unprovoked lunge?

Honestly, does it get any more bad ass? I love that line: "cutting off the man's hand and causing a severe laceration to the man's upper body."

I know, ostensibly, a shotgun would probably be a better idea--and substantially less likely to elicit a "lunge" and the subsequent lethal encounter--but a sword definitely wins points for style, if nothing else.

There seems to be some confusion about whether the killing took place in the student's home, depending on how you define "home". This article says:

There was a pool of blood Tuesday morning in the brick courtyard between the back porch of the home and the garage. The courtyard was strewn with debris, including what looked like broken glass.

Would it be of legal import if the killing took place in a courtyard outside the house rather than inside the house itself? My gut feeling would be that the self-defense right would be somewhat lessened: killing an intruder in your living room is presumptively more reasonable than exiting your house to kill an intruder who's outside your house but on your property.

Wasn't there just a case in Texas about shooting somebody with a shotgun on the driveway?

I think the "reasonably believes that one is in imminent danger of death or serious bodily injury," would almost be self evident in a case like this. If the defender is obviously displaying a deadly weapon, anyone who is able to take it away would be a fool not to turn it on him. You do not allow your opponent to close with you, if you have any choice in the matter.

The defender was lucky he had room to swing the thing, indoors. I'd more have expected him to have run the perp through.

It's a shame he can't sue the perp's family for having raised a criminal.

or if the student sincerely but unreasonably believed that he was in danger of death or serious bodily injury

Isn't there some kind of defence for this? In my jurisdiction (the Netherlands), this is called self-defence in excess. Formally, it is not a defence but a factor in mitigation (although this depends on which law professor you ask). Where self-defence in excess is found, the punishment is seriously reduced, or the court might even decide not to impose a punishment at all.

1) Who the heck keeps a samurai sword sharp enough to whack off limbs in (presumably) one swipe?

I keep a very sharp viking sword in my home. I also keep a very shark scramasax.

I have little doubt that the sword could remove limbs given the need. I have accidently sliced my finger open on it a couple times and I do sometimes chop small metal objects in piece (canadian pennies are really easy to cut with this sword).

Mark Buehner -- I wouldn't have guessed it'd be that sharp (what kind of period armor would that have been? Cloth?), but even so, it doesn't sound like the kid got a solid blow at the guy. An article someone above linked to says the burglar "kind of forced the kid against the wall, and he struck him with the sword," which to me doesn't really sound like he got the kind of weight behind it that'd be necessary to do all that damage in one strike. I guess the kid wasn't using some underpowered d20 katana...

(Now let's wait for the civil suit.)

The dead guy was a career criminal. Recently released with a string of B &E convictions.

Not too much chance of a civil suuit being successful.

The asininity of the law is evident in its pondering proportionate response to aggression.

As any child age two can tell you, it is only a response that is far out of proportion to the offense that is an actual deterrent.

People who break into houses -- or even into private courts -- should fear that some crazy with a sword will hack their hands off, then laugh as they bleed to death. It would cut down substantially on the number of break-ins. Merely showing them the door at the point of the sword will not.

DennisN:

I have worked through strategies with a viking sword and generally agree. However I will say that further into combat one often benefits from breaking that rule and getting up really close to an opponent. My form and training routine is a little hard to describe here. But if I thought you MIGHT be armed, and you made a lunge at me from, say, 8-9 feet away while I was holding the sword, it would end either with you dead or crippled whether or not you had another weapon.

Swords rule!

As to the law, Florida is one of those (along with Texas I am told) where the lack of prosecution on the reported facts would be a nearly foregone conclusion.

On the weapons side, as I have practice Aikido for 20+ years and some iaijutsu (a Japanese "quick draw" sword art) the exact wounds indicated here and the fact that the guy had properly sharpened sword in the first place suggests he may have been a practitioner of some traditional sword art. Cutting indoors with a low overhead is a specific feature of many schools' training

A commonly practiced combination in many schools of the sword, a drawing cut(nukitsuke) could have laid open the chest, and the return downward diagonal cut(kesagiri) would have taken a hand if raised in the attacking lunge and in the path of the cut. That order might indicate some moderate training. Or, the combination could easily have resulted in the wounds occurring in reverse order, in which case he would have been MUCH better... Just those two cuts takes about a tenth to a fifth of second, if trained -- and the whole sequence with chiburi and noto (shake-off and re-sheathe) can take less than a second. A second is longer than you think it is.

Practical, too, apparently. Who knew?

1) Who the heck keeps a samurai sword sharp enough to whack off limbs in (presumably) one swipe?
A medieval weapons enthusiast. It's not that uncommon (and groups like the SCA recruit on college campuses), I know several people who own swords. Also, hitting someone charging you is pretty much reflexive.

Practical, too, apparently. Who knew?

It's situational. Wouldn't be so practical if the burglar had managed to surprise him (from behind or around a corner). A tantō would have been better there.

I believe you have oversimplified the law. The law actually requires that the person defending himself, prior to taking steps to defend himself, prepare an essay of not less than 300 words that must (a) describe the danger he is in (b) explain the level of the threat he feels he is under, (c) justify why that threat level is sufficient to allow him to defend himself, (d) show that the means he intends to use to defend himself and no more likely to cause a fatality than is necessary under the circumstances, and (e) be notarized.

I think that pretty much sums it up.

There must be a valid reason why these sorts of counter-suits are not filed as a matter of course, but I can't think of one.

Because most burglars and petty criminals don't leave sufficiently large estates to make a suit worth while? Just guessing.

Yankev,
Yes, I think your point is clearly correct. I was wondering why these suits are not filed as a matter of course (in a prophylactic sense), to protect against some later suit filed by the estate? Or, at the very least, in every case where the estate *has* filed such a suit. What is the reason a counter-suit is not always filed then? Of course you won't be able to collect an affirmative judgment in almost all such cases. But since the point is merely to protect against a potential judgment against yourself; why not? (I always wondered what the result would have been if the police officers had counter-sued Rodney King for his actions on that infamous night. How much of King's eventual settlement would have been offset?)

Given that the burglar initiated the combat, and therefore chose to fight a person who had a sword, I find it difficult to conclude that what we have here is a murder, or manslaughter. It is obviously a suicide.

I am not ready to get rid of my 870 with buckshot

load,Anyone have thoughts about the Taurus Judge? I've not seen one outside of the display case, but the write-ups make it look like very potent medicine. And much more manueverable than a long barrelled shotgun, with five shots instead of the two you would get with a shorter coach gun.

I can't comment at all on this case, but I recall the following similar story from my time in England in 2004: Man Who Killed Armed Intruder Jailed.

Sounded even more problematic at face value, but I suppose one doesn't always get a full picture from news reports.

For those wondering where someone gets sharp samurai swords, there are US companies like Cold Steel that sell them.

These are reproductions, made with modern manufacturing techniques, but fully functional and very sharp. They go from several hundred dollars up to nearly a thousand.

The cheap ones sold in convenience stores and flea markets for $50-100 are junk and I doubt they could take the hand off a teddy bear.

If you want the real thing, made by a Japanese swordsmith in the traditional fashion, expect to spend the price of a nice car.

But since this guy is a student, but the sword was good enough to apparently cut through the wrist and still inflict a fatal chest wound in the same blow, I'm guessing one of the Cold Steel types (or their competitors).

The Texas case I'm thinking of was in the neighbor's yard, as I recall...

As to using katana or wakizashi indoors, my understanding of weapons engineering is that due to their blade design they're considerably more suited to indoors combat than a European broadsword or a saber would be - although probably not as useful as a rapier or a gladius. The Japanese swords were shaped in a way that makes them most effective with drawing cuts, as opposed to the chopping cuts of a broadsword or a saber - basically, katana and wakizashi are to broadsword and saber as saw is to axe. As a result, you don't need as much lateral or overhead clearance to deliver the best cut with a Samurai's sword as you would with a Knight's or a Cossack's sword. But you need even less lateral and overhead clearance to get optimum use of a rapier (many of which had edges blunter than standard kitchen knives) or gladius, since both were designed to kill by penetration through stabbing/thrusting motions - and were designed for use where you didn't have much room to either side because of cramped medieval walls (in the rapier's case) or your fellow legionaries (with the gladius).

Now, the states where it is presumptively legal to kill intruders (and I'm assuming even the most liberal states in that regard - Texas and Florida, someone said? - still have restrictions that would make it criminal to, say, leave caltrops or landmines in your yard to keep trespassers out or dead), is that by statute or common law? And have any of them changed from common-law legal-fiction-duty-to-retreat to statutory right-to-kill?

The Judge is useful for snakes, rabbits and squirrels using birdshot, but for more serious opponents, you would be better off loading it with the .45Longs it can also chamber. .410 buckshot is usually only five pellets, compared to 12 or 15 in a 12gauge.

Frankly, the Judge is a novelty gun, it offers none of the advantages of a full-size shotgun (easier to aim, recoil control, mass for striking, etc) while being only marginal in power when used with .410 shells, a Remington 870 (6+1 12ga for the tactical models) or Mossberg 590 (7+1, 12ga) would be a much better home defense weapon.

Was the burglar named Zed?

People asked who would keep a weapon like that around. Some people are afraid of keeping guns but do want something that looks fearsome so that they can scare people away. You may recall that a Washington Redskins football player, Sean Taylor kept a machete by his bed, but it turned out to be no match for the burglar's gun. Taylor died from a gunshot wound.

Steve2, I don't think any State presumes that you can kill an intruder willy-nilly. Even TX and FL.
TX "Except as provided in Subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force"

The reasonableness is a question for the jury.

FL
justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

Again, reasonable belief is for the jury to decide.


Protecting property with deadly force has never been authorized at common law.
Some States do have statutes (like Missouri for example) stating that you do not have a duty to retreat from your house. But I don't even know if that duty existed at Common Law once you were in your house. Duty to retreat could still be in effect by the common law when you're not inside your house.

A practical question for the attorneys here:

Let's say I've killed a burglar in my own home by shooting him, cutting his hand off, or pushing him down the stairs. Should I...

a) Call 911 to report the burglary, omitting the fact that I killed the guy, then completely clam up when the cops arrive and ask for an attorney.

b) Call 911 and tell them to send an ambulance as well as the police, and not speak to the cops.

c) Call 911, tell the cops my story, but ask for an attorney once they press me or take me to the station.

d) Call 911, tell the cops everything as many times as they ask, and completely trust the legal system to deal with me fairly.

I'm really interested in what the folks here think...

Steve2:

As to using katana or wakizashi indoors, my understanding of weapons engineering is that due to their blade design they're considerably more suited to indoors combat than a European broadsword or a saber would be - although probably not as useful as a rapier or a gladius. The Japanese swords were shaped in a way that makes them most effective with drawing cuts, as opposed to the chopping cuts of a broadsword or a saber - basically, katana and wakizashi are to broadsword and saber as saw is to axe. As a result, you don't need as much lateral or overhead clearance to deliver the best cut with a Samurai's sword as you would with a Knight's or a Cossack's sword. But you need even less lateral and overhead clearance to get optimum use of a rapier (many of which had edges blunter than standard kitchen knives) or gladius, since both were designed to kill by penetration through stabbing/thrusting motions - and were designed for use where you didn't have much room to either side because of cramped medieval walls (in the rapier's case) or your fellow legionaries (with the gladius).

Some of these points are a bit overrated. The fact is that regardless of type of blade, the key element in being able to competently fight is control. With my viking broadsword I can chop a canadian penny in half with relative ease, but effective swings require surprisingly little overhead. This is because wide swings (which require the overhead) are very difficult to control.

There are major differences though. A katana or a bokken has several options for blows and these include a "chopping thrust" where the point is forced forward in a chopping motion and thrusted forward. You probably need about 5-6 inches of overhead clearance to make this work. Or you can make drawing blows. The Katana actually handles fairly well for drawing blows but requires quite bit more clearance since these are wider swings.

A more typical blow is something in between a drawing cut (think of slicing through a beef roast) and a chopping blow. These are what the katana really does best.

Now with my broadsword, although I can thrust with it, and although I can do drawing cuts (some of these make it into my forms), the primary strike is a one-handed, closely controlled, chopping strike. In this motion the energy and force is delivered almost entirely by moving the body, and the arm simply guides and positions the blade for impact. Despite the fact that the weapon is around 30in. long, I can make do with a bit under 2 ft of overhead clearance, more than enough to use to indoors. A good way to think of it is that it is like throwing the weapon but never letting go.

Now for a rapier, these are generally favorable for one on one fights, but they break down on the battlefield. You need an ability to move your body as well, so lateral clearance is still a factor. This is actually why the rapier makes a lousy battlefield weapon.

Axes are overrated too. They are historically used because they are cheap to produce not so much because they are effective weapons.

Bleeding out takes time. The glass may have broken when the guy changed his mind about the relative merits of continuing his attempted attack on the homeowner and chose the most immediate exit. There will be no shortage of spatter evidence to construct an independent account from the moment of sword contact.

Cornellian:

If that's the whole story, no way will a jury convict him.

Maybe it goes something like this:

Q: Has the jury reached a verdict?
A: Yes we have your honor.

Q: Will you please read the verdict?
A: We the jury find the defendant not guilty in all charges and hereby offer him a standing ovation.

Even a piece of junk could take a hand off. It's just that a piece of junk might break in your hands (you've all seen that video, I hope). I've got one of the junk ones myself - it was a gift from someone who knew I fence. It feels not at all like a sword, but a sharp piece of metal is a sharp piece of metal.

When katana are outlawed, only outlaws will have katana.

c which is roughly what seadrive wrote. I like how he phrased it better. I would cynically say a, but honestly, come on, you know that that would only make you look worse.

Greenglow, I think the "asinine" epithet has to do with the actualities of combat situations rather than underlying arguments about love-thy-neighbour.

If someone has entered your domicile and is threatening you (and probably your spouse and children) with potentially lethal violence one doesn't have time to take depostions and assess everything over a discovery period of several months (isn't hindsight wonderful). Decisions have to be made in split seconds with limited information.

I recall a couple of louts attempting to mug me one evening as I was walking my Bouvier. Given their obvious drunken state I wasn't too concerned except that I couldn't see (it was after dark and the streetlighting dim) the one fellow's hands. If he was carrying a knife the equation changed radically. My incident ended happily because while I was ruminating over a course of action my Bouvier side-stepped and yanked me 20 yards passed said louts.

Hence the referring to the laws hampering people from feeling free to defend themselves at night in their own homes (which could well lead to the demise of the homeowner worried about legal actions and being twice victimized) as ridiculous.

Laws which fail to reflect reality are always bad laws.

GreenGlow, I think you misunderstand the Texas law on this matter. You've cropped the key language:

The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

In other words, there is a presumption of reasonableness in cases like the Maryland one.

You are also incorrect that Texas law does not allow for deadly force in the protection of property:

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.9.htm

Greenglow - I think Alaska comes pretty close to presuming that you can kill an intruder willy-nilly. From AS 11.81.350:

(c) A person in possession or control of any premises, or a guest or an express or implied agent of that person, may use
. . .
(2) deadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be a burglary in any degree occurring in an occupied dwelling or building.

Having ascertained that Florida, Alaska and Texas acknowledge the right to self-defense, what is the case in Maryland? I seem to recall Ohio being more restrictive, for example.

GreenGlow I think the point being made is that regardless you ought to be free from legal action (criminal or civil) if this happens as a function of someone else's actions.

As an analogy, the courts do not release me if I get hammered then fire up my 5000 lb vehicle and run over someone and if someone breaks into someone else's domicile they are in the same situation as someone who drinks and then drives.

Edged katanas are normal. As others have pointed out, particularly if the wielder were a member of the Society for Creative Anachronism or one of the similar groups, a fully edged katana would be a prestige item. Furthermore, if it were a real one, it would not have to be particularly well edged to kill some one.

I have never studied katana, but I did study briefy under Martinez who teaches his students to fence as if they were about to go into a duel for their lives. They are trained to defend themselves with their weapons and, when attacking, to offer blows that would, with a pointed or edged weapon, kill an opponent. Scadians also attempt the same sort of practice. All efforts use full body armor.

The net result would be if this individual were trained in Scadian techniques and was trying to kill the burglar with the weapon, he would not have cut off his hand. He would have used a thrust or lunge and there would have been a hole in the burglar's torso, or perhaps he would have tried a cut at the burglar's head, in which case HE WOULD HAVE PROBABLY CUT IT OFF if the katana were a fully edged weapon. If it were not, he would look like Nearly Headless Nick.

It sounds to me as if he tried to hit the man in the arm or forearm, which, given enough time, would have caused him to bleed to death, but given the fact that he had to think first would be a reasonable attempt to (literally) disarm him and clean up the mess later. Wth a really sharp blade, such a stroke might have taken off the hand and penetrated into the torso. A police surgeon would be able to comment.

If it were a single blow, I would say that it seemed likely to be a miscalculation and thus fall under the 'reasonable belief' doctrine. If, however, he cut off the hand and THEN chopped at the torso.... well, he might argue panic, but if it was not panic, then it seems no longer reasonable to me. Unless there's something like Angel Dust involved.

Bob

Ok one last note since I used the drunk driving analogy.

Try and sort this one out!

Drunkdefense

1) Who the heck keeps a samurai sword sharp enough to whack off limbs in (presumably) one swipe?

2) Normally I'd cheer on the John Hopkins kid for acting successfully in self-defense, but this case makes me want to pause on that until more facts come out. Something just seems slightly odd. If the would-be-burglar was on drugs or something, then it makes sense, but if not... Was the guy's hand chopped off and then he just kept on attacking, requiring samurai dude to slice his stomach up? Or vice versa? Or was this thing sharp enough to go through a hand and then go on to deal a death blow, Kill Bill-style?

Having lived in Japan for nearly three years I later took an interest in its history and politics at UCLA by taking a number of classes. I read a memorable anecdote written or reported by a U.S. dignitary. He was being accompanied by two samurai when they were attacked by brigands, one of which was cut in two through the midsection with a single swipe of a sword by one of the samurai guards. So, yeah, I think it's possible.

It appears I stand extremely corrected on the form &function of bladed weapons. Thanks, einhverfr.

And GreenGlow, that's an extremely disappointing state of affairs. No unchecked, presumptive right-at-law to kill? Talk about an immoral law violative of fundamental human rights.

Scadians also attempt the same sort of practice. All efforts use full body armor.

My techniques are so not Scadian-legal.

Body rams. elbow strikes, pommels, committed heavy blows designed to break bones through armor with a fighting stick, knee contact, etc. But it is all under control.

And, if I had a shield or other similar implement, that would be used to strike too.

Occasionally I have built practice weapons for use with padded armor. Usually I use pvc pipe wrapped in padding and weighted with lead fishing weights (not for children under the age of 12 ;-) ). I do this because PVC is somewhat flexible though it has a tendency to break during practice when heavy blows and weights are used. More often though I resort to tricks I learned from Kempo which is solo drills and "tap-tap" drills with lighter weapons.

RE: A Katana's cutting power.

There was an episode of Mythbusters a while back that addressed a bunch of Samurai myths. They had a guy cut cleanly through a pig carcass, bones and all.

a more common test of a sword's sharpness is a rolled up tatami mat. You can pretty easily see the kind of power a pulling stroke with a sword like that has.

With respect to the man in the UK who was convicted of killing one of four armed intruders with a samurai sword, there was more to the story.

http://archive.thisislancashire.co.uk/2004/3/25/500443.html

Apparently, the "homeowner" was a drug dealer and the person killed was stabbed four times in the back as he was running away.

A long time ago I saw a report about self defense against home intruders. If there is just one intruder, the advantage is to the home owner (who knows the layout of the house and has the element of surprise since the intruder does not know if anyone else is there). However, if there is a second intruder, the advantage goes to the intruders. After the first intruder is shot, the homeowner will not know if there is anyone else in the house....the second intruder will have the element of surprise.

If I ever feel the need to have a weapon to protect my home, my defense plan would be this: I have a phone and a shotgun next to the bed. My bedroom door is closed and there is a light on in the hall. If I hear anyone break in, I call the police. I hide behind my bed with the shotgun aimed at the bedroom door and wait for the police to arrive. I would only fire the gun if someone came into my room (they would have to open the door and they would be silhouetted by the light in the hallway).

I am not a pacifist; I would use deadly force to protect myself. But I am not experienced at using force and I would probably get myself into worse trouble if I tried to go out and find the person breaking into my house. Also, I think that the cost of replacing my possessions would be less than the "cost" of the negative emotions I would feel if I shot someone.

the goals promoted by it are far from asinine.

On the contrary, a legal regime that weighs the lives of the innocent person at home, and the violent intruder assailant upon him, as being of equal value is asinine.

GreenGlow,

A self-defense killing is prosecuted as a murder, and the victim can prove that more likley than not, it was self-defense he can get away from the murder charge.

Wow, what jurisdiction are you talking about? Here in WA, someone from the King County Prosecutor's Office recently mentioned that they had not, in the memory of anyone there, ever prosecuted a shooting against an intruder.

Hugh59, that sounds sensible. Thing is, I think burglars almost always locate the master bedroom of a house and go through the drawers, hoping to find money or jewelry. There would be a pretty good chance the burglar would get to the bedroom door before the cops came.

Some dude... how do the police know that the dead guy was a burglar, if the guy doesn't talk to the cops at least a little bit?

Hugh, that's not a bad plan, assuming you are the only one in the house. I'd announce your presence in the bedroom to the burglar and yell at him that you've called the police and are armed. Also, be certain to tell the 911 operator to tell the police that you are armed and in your bedroom, so they will know not to surprise you in there.

GreenGlow, it's difficult to argue with you when you just make up things out of whole cloth.

The neighborhood where is Charles Village, which is not near Hopkins hospital. This is the undergraduate and graduate campus, but not the medical school campus around the hospital. It's actually quite a gentrified neighborhood with a weekly Saturday farmer's market located at the next neighborhood over. It's just Baltimore.

I wonder what year of medical school he is in. Maybe he hasn't gotten to the "primum non nocere" part yet (words Hippocrates never wrote, and certainly not in Latin).

Also, I wonder if he made any attempt to save the guy after he severed his hand, e.g., apply a tourniquet. Would he have such a duty under the circumstances?

A self-defense killing is prosecuted as a murder, and the victim can prove that more likley than not, it was self-defense he can get away from the murder charge. There are interests in protecting from fraudulent murders.

You mistake "can" with "will be," and you have the standard of proof wrong (except in a tiny minority of states).


Yes, it is true that more or less any time there's an intentional killing, it would be within the prosecutors discretion to bring a murder charge.

But you have to remember that in nearly every jurisdiction in the country prosecutors are elected. (and so are judges in many areas) Certainly in Texas, and likely in a lot of other states, no one would re-elect a prosecutor that chose to charge someone who was defending themselves in their own home with murder.


Second, bringing a charge the prosecutor knows he won't win is a waste of time and resources. That's why so many weaker cases are plea-bargained out.


Finally, only a minority of jurisdictions make self defense a true affirmative defense. Most require an initial burden on the defendant, but then require prosecutor to prove that self defense didn't exist.

Kirk:

On the contrary, a legal regime that weighs the lives of the innocent person at home, and the violent intruder assailant upon him, as being of equal value is asinine.

I think the problem is that a lot of folk see "asinine" as a compliment.

Orientis partibus
Adventavit asinus
Pulcher et fortisimus
Sarcinis aptisimus

Hez, sir asne, Hez!.....

Would it be of legal import if the killing took place in a courtyard outside the house rather than inside the house itself?

”Pool of blood” doesn’t equal “where he was killed.” It’s common for home invaders to sustain a fatal wound, stagger outside, and die.

My gut feeling would be that the self-defense right would be somewhat lessened: killing an intruder in your living room is presumptively more reasonable than exiting your house to kill an intruder who's outside your house but on your property.

Depends on state law. As quoted, it seems the main criterion is fear of imminent injury. A lunge in the yard is just as offensive as one inside the house.

And have any of them changed from common-law legal-fiction-duty-to-retreat to statutory right-to-kill?

Not exactly. Under Chapter 9, Texas Penal Code, (c) “A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section. (d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.” You still have to justify self-defense.

You could have found some TX case law and enlightened all of us

The law was substantially changed with passage of a castle doctrine bill in 1997. Case law is still skimpy.

Assuming the burglar lunged at him, how can there be any question about this guy's right to fend him off with the sword, when it's very possible that if he doesn't, the sword will be taken away and turned on him?

Not an argument I like to see, as the logical response is to prohibit possession of the sword. Just figure if someone is so high, angry, or psychotic that they charge an armed person, they’re too dangerous to be put in control of your life.

And if it is the police that enter your room?

At least here in Texas cops don’t enter your home under this situation without announcing, flashing lights, etc.

Some dude... how do the police know that the dead guy was a burglar, if the guy doesn't talk to the cops at least a little bit?

Breaking into someone’s home is a pretty big clue that he intended to do something illegal. That combination makes him a burglar.

The issue no one has addressed is the legality, in Maryland, of possessing the sword. Remember Bernhard Goetz, convicted and imprisoned in NYC for possessing the revolver he was acquitted of using to protect himself?

"First, do no harm - but if someone breaks into your house, then go Ninja on their ass."

Or was it that the medical student was merely trying to disarm the intruder? (Opps! Sorry! That was me, my bad.)

LarryA... you're missing the point of my comment to Some dude. He was hypothesizing the guy not saying a word to the cops, which I took to mean not even saying "the bastard was breaking into my house, so I defended myself." If you truly say nothing to the cops, how do the cops know the guy was breaking in, and is not your roommate, or some family member you invited over, or anything? Cops show up at your house after you call them, there's a dead guy on the floor, you really ought to say SOMETHING. As I said before, you shouldn't say much until after consulting an attorney (just to be safe), but you need to talk to them a little bit, convey enough information so that there first assumption is not that you just murdered your roommate or something.

As a fencer and sword fancier who has been known to chop up melons and squashes for demonstrations, I'm pretty confident there's nothing shockingly unusual about the wounds, given the weapon and some basic training. It's mostly about knowing what plane to draw the blade briskly through: and a katana is used up close, with the whole middle of the blade drawn across the wound, not at standoff distance like a rapier. Modern kendo does not really reflect this, because the practical sport's use of the shinai makes rapping one's opponent firmly with the very end of the blade the usual attack.

It's the choice of that weapon that gives me pause: one of the things I know from common sense and having a few law/enforcement friends is that, given the givens, the smart fellow does not reach for an exotic weapon to go after an intruder. Wooden swords, baseball bats, and chef knives all work on the same basic principles. Though less efficient, they are much less likely to give police the impression you're spoiling for a chance to use your weapon.

Has anyone along the way addressed themselves to my question regarding a possible duty to help an attacker after the attacker no longer poses a threat and now urgently needs assistance to stop their bleeding and get them to a hospital?

Approaching someone who moments before was a lethal threat close enough to give first aid is a pretty risky thing to do. Maybe Whit will chime in, but I think in that circumstance a trained officer would only attempt first aid after the assailant was handcuffed, and preferably with backup present. Someone not trained in arms length handling of suspects, without handcuffs, ought to be thinking pretty carefully before approaching in those circumstances. Maybe I would do it in some circumstances, but I can't see failing to do so rising to the level of a tort.

You should, of course, immediately call for an ambulance, along with the police.

In the Harold Fish case (man shoots crazy guy on a trail in Arizona in pretty clear self-defense) the jury looked positively at the fact that the defendant tried to render aid to the victim/assailant after shooting him. So, I think any first aid toward your assailant is more likely one of those intangibles that speak to character (like previous comment on choosing samurai sword versus baseball bat) that don't create a right of action or any rise to any legal threshold, but are certainly taken into account when judging your actions. Of course, if you do it wrong and the guy dies, then the prosecutor gets to paint you as someone malicious enough to not be satisfied with shooting your victim, but then messing up first aid and killing them with your bare hands.

Harold Fish also made the mistake of saying too much to the police right after the shooting. His earliest statements, made in the heat of the moment, were later used to pick apart his side of the story as to when the shooting occurred and why it (may have) taken so long for him to get help for the wounded assailant. You probably can't avoid saying something - there is a body on the ground and a gun/sword in your hand - but the Massad Ayoob theory of telling the cops that you were scared, acted in self-defense, and will give a complete statement in 24 hours after speaking to your attorney is probably the best choice.

After all, cops get the same treatment after a line-of-duty shooting. They are put on paid administrative leave and generally don't say anything for a day or two so that they can sort out what happened when the adrenaline was pumping - sequence of events, verbal warnings used prior to employing force, number of shots fired, etc. Best to give yourself a time cushion to calm down and recreate the event in your mind before saying anything.

1) Who the heck keeps a samurai sword sharp enough to whack off limbs in (presumably) one swipe?

My then 13 year old son convinced my wife to buy one for him mail order. It came sharp enough to shave with. It was kept locked up with the rifles, much to my son's disappointment.

I was more afraid of it than the firearms. If you dropped the thing, you could lose part of a foot. We did use it to chop up a Christmas ham one year. Great fun that.

Not sure if it has been in the comments, but the student (carrying the sword) left his house and went into the garage where the intruder had broken in, according to news reports.

pintler, I did say "after the attacker no longer poses a threat."

Indeed. I should be more precise - I think it is unlikely that your average person can determine that an assailant is no longer a threat (in the few minutes before aid arrives) unless the assailant is so badly hurt that first aid is unlikely to help. In the extant case, you may think he is unconscious and will stay that way, and be surprised when he sets up and grabs you.

I have read biographies where apparently hors de combat people suddenly present quite a struggle when the officer tries to cuff them; such stories are in fact quite common.

Another consideration - how do you know that the crook was alone? Was his buddy waiting in the car, or returning from carrying a load to the car? You know there is at least one person nearby who wanted to kill you (or you wouldn't have used deadly force). You don't have a way to accurately know how incapacitated he is, or if there is an accomplice nearby.

Is it OK if you decide to risk it? Sure. Is it reasonable to prosecute/sue someone because they didn't? IMHE, that would require a pretty unusual set of facts.

@ LarryA

Maryland has some interesting laws on these topics. It does not have a statutory "castle doctrine" ( e.g. FL &TX), and indeed no significant statutory law on self-defense at all. But its common law cases recognize a similar self-defense exception to the duty to retreat in several circumstances that may be applicable here -- in the face of immediate force anywhere (vice merely threatened force), the threat of force in one's own dwelling, or when forcibly robbed.

Another, much more interesting interesting point of Maryland law on the weapon itself, which almost seems to beg for the carrying of a sword in the circumstance reported: §4-101 does not prohibit citizens of the state of Maryland to openly carry non-firearm, defined "weapons" -- "as a reasonable precaution against apprehended danger" subject to judicial determinations of reasonableness. I frankly do not see how a sword is placed within the stated definition of the prohibited "weapons" in the first place.

That provision almost certainly applies in the reported case, given the prior night's B&E --as well as the ongoing B&E. It may be that the open carrying of a sword is not directly regulated. The sword is still the premier member of the class of "honorable" arms as opposed to the often statutorily distinguished class of "dishonorable" "weapons" which seems to be the basis for the distinction in the definition in Maryland, as it is in Florida and many states.

There is of course the second verse of Maryland's State song -- but it may be of debatable precedential value. :)

"Thou wilt not cower in the dust,
Maryland!
Thy beaming sword shall never rust,
Maryland!
Remember Carroll's sacred trust,
Remember Howard's warlike thrust,--
And all thy slumberers with the just,
Maryland! My Maryland! "

LarryA... you're missing the point of my comment to Some dude.

Oops. I read your comment as asking how the police would know if the intruder was a burglar if the intruder said nothing. (“guy”=”guy”)

Has anyone along the way addressed themselves to my question regarding a possible duty to help an attacker after the attacker no longer poses a threat and now urgently needs assistance to stop their bleeding and get them to a hospital?

He should certainly 911 for medics. However, if I was going to be sued I’d rather have to explain that I didn’t get anywhere near the person because he still might be a threat, than explain how come he died while I was giving him first aid. As in, “This person just threatened your life. Are you now telling us that shoving a towel against the severe wound you caused was to slow bleeding, and not to inflict more pain?”

Scape -- Who the heck keeps a samurai sword sharp enough to whack off limbs in (presumably) one swipe?

I am going to guess that after this story, the answer is -- Lots or Volokh Conspiracy readers.

Got hassled during a routine Traffic Stop for havin a friggin BOOM-A-RANG in my car... Mom had gotten it for me on a trip to Austrailia, through it in the back with all my other crap. Dude didn't confiscate it, and just wrote me a warning for the Speed, told me to put it in the trunk, which I did. Somehow my Lousiville Slugger didn't warrant the same attention.
Funny thing was I had a semiauto AK-47 in the trunk (perfectly legal BTW)Learned my lesson, keep all throwing weapons out of plain site

Frank

I'm glad to see we at least agree that using deadly force in defence of property is never OK. I remember having that conversation on VC and elsewhere, and finding that that wasn't as uncontroversial as I'd imagined.

That is not true. In Texas it is sometimes lawful to use deadly force to protect property.

Like I said: some people do value their TV more than a human being.

Like I said: some people do value their TV more than a human being.

Well, if some nimrod puts me in the position where I have to choose between my TV or his life...

I think the person attacked, in this case the medical student, must have such a duty because he caused the injuries, no matter that he did so in the course of defending himself against the person who is now exsanguinating in front of him. If the student hadn't been the one wielding the sword and instead had simply witnessed a sword-wielding neighbor deal with a burglar the same way, then I believe in most jurisdictions the student would have no duty to step forward and render what care he could without endangering himself. Anyone think otherwise, or know of jurisdictions where it would be OK both as a civil (tort) and criminal (what?) matter to do nothing but watch?

Professor Volokh, is there a torts question here?

@Neurodoc:
That's actually a pretty interesting tort question -- the Med Student's duties under the Good Samaritan doctrine and any statutory laws. The Good Samaritan doctrine (sometimes called the Assumed Duty doctrine) provides for civil liability when, although there was no duty to act, the person decides to act, but acts negligently. By acting, the person assumes the duty to discharge the undertaken duty in a non-negligent fashion.

For a long time, doctors were told by their lawyers, “If you see an accident, don’t stop, keep going” even though that may result in some dying that you might have been able to save. The Good Samaritan doctrine was the basis for this advice (&another example of the social good brought about by our torts system when someone is looking at a poor hurt person and a doctor insured by a big insurance policy).

A number of states have enacted statutes modifying this doctrine when medical providers stop to provide assistance. However, I have never seen a statute that imposed a legal duty upon a medical professional to provide emergency care to someone who was not his/her patient.

If the Med Student tried to provide care after wounding the perp, he could be sued for wrongful death as a medical malpractice action (under the Good Samaritan doctrine, as modified by any applicable Maryland statutory law). Those facts would also likely require reporting the alleged malpractice and its surrounding circumstances to any state medical licensing board where the Med Student eventually wishes to practice – which could also raise some interesting questions. One of those questions would be Med Student's ethical duty to offer assistance, and if he failed to do so, should he be denied licensure for that reason.

Pintler:

Indeed. I should be more precise - I think it is unlikely that your average person can determine that an assailant is no longer a threat (in the few minutes before aid arrives) unless the assailant is so badly hurt that first aid is unlikely to help. In the extant case, you may think he is unconscious and will stay that way, and be surprised when he sets up and grabs you.

Indeed. The Havamal has some rather choice words to say about not trusting the dead on the battlefield.

I'm glad to see we at least agree that using deadly force in defence of property is never OK

And on second thought it's not just Texas, I believe many states allow deadly force to prevent arson, even if no one's life is in danger.

Presumably, preventing arson and a few other crimes is a legitimate reason for using deadly force because there's no way of being sure whether someone will get hurt if you don't. (Fires spread, there may be someone inside anyway, etc.)

Since were presuming, I'd presume it has to do with the value of the property involved and the consequences of losing it; If you burn someone's home or business you may be rendering them homeless or destroying their livelyhood.

Not hard to imagine such facts here - instead of severing one hand, the student managed to lop off two in one swoop (kinda like the tailor who killed seven with one blow). That would be enough to incapacitate the attacker, wouldn't it? Then would it be legally incumbent on the med student to render what aid he could?

I agree, having both hands severed would be generally pretty incapacitating - as any officer will tell you 'Watch The Hands'. It would not incapacitate an accomplice. If the attacker was a junkie, there may be a legitimate fear of blood borne pathogens.

In any event, I do not think double amputations are a common fact set, and moreover you had better be pretty quick with the tourniquets for it to matter in a practical sense. My household first aid kits, for example, only contain one tourniquet - I would have to check the scene for accomplices, call 911, retrieve the first aid kit, apply that tourniquet and improvise a second from, perhaps, the triangular bandage, all within the 3 minutes or so you might have in those circumstances. I'm no MD, but I have had a circa 80 hour Wilderness First Aid class where we tried that kind of thing with the stopwatch running, and I am skeptical it will work.

In my Filipino Martial Arts class (Inayan Eskrima) we routinely practice cutting in the same way the various kendo schools do - we roll up a bamboo mat to about the thickness of an arm, soak it in water for a night, and put it on a stand. Then we try to cut through it cleanly (the optimum being cutting through so cleanly that the bamboo stays in place, then falls away dramatically). It's neither as easy or as hard as it looks - if your knuckles and your swing are not perfectly aligned with the edge of the blade it will chop into the wet bamboo and turn, leaving only a surface wound (skin and muscle tissue). If you hit the target at the apex of your swing, you will also chop, because you aren't 'drawing' the blade as has been mentioned many times before.

So what you do is target the apex of your swing one to two inches before impact. When you hit, your arcing motion will naturally 'draw' the blade towards you - very little is needed, if you think about the geometry. But that is what makes it a bladed slice, rather than the chop of a wedge.

We don't know how hard or how properly the med student made his hit. It's possible he just got mostly through the bone and the guy's running away dislodged the rest. It's possible the med student only made one swing, through the upraised arm and then scraping the chest. It's possible that under the effects of adrenaline he hit before the apex of the swing and pushed it all the way through the little bones of the wrist. Who can say.

I can only echo another poster who said that the guy's Dungeon Master should award him 100 experience points and two rolls on Treasure Chart 'O'.

(link)Porkchop:

My somewhat educated guess is that there were two separate blows.

And that would be a pretty instinctive combination. Assuming the hand was cut off with the first blow, there would be no time to check for the severity of the injury, the second blow would simply follow. The swordsman would probably not even know the status of the hand until later.

I'm not a student of the sword, so am more comfortable with thrusting weapons. In addition to firearms I have an Iklwa, a short Zulu stabbing sword. It is quite fearsome, either as a stabbing or a slashing weapon, at close range. I am seriously considering mounting a bayonet stud on my shotgun.


Hugh59:

I don't know if I would give a warning if the door to my room opened; I probably would. After all, maybe some family member decided that 3am is a good time to visit unannounced.

It also gives you a certain amount of legal cover. Any reasonable person would expect that a person breaking into a room where the occupant has announced his intention to shoot, is mortally dangerous. Then when you shoot, be sure you kill the SOB because he is extremely dangerous. Announcing your intentions also gives you some protection against Blue on Blue (AKA friendly fire) accidents.

You would obviously want to account for all house occupants before firing, if at all possible. This is where defensive planning comes into play. You have the time, in advance, to plan your shots. "If I stand here, and fire through the door there, my shots will go over there. That's OK, no one should be standing there. (Or OMG, that's where the crib is, I'd better not do it that way.) This gives you an incredible advantage over the intruder.


PatHMV

If your family is scattered around the house and, not knowing the precise location of the intruder, you can't safely gather them together in one room, then you don't have much option other than to go forth and confront the intruder.

Pretty much, unless you can set up the situation so the geometry is in your favor. In general though, you'd want to put pressure on the intruder to deny them the opportunity to take hostages or do anything tragic. Again, planning is your friend, here.


yankev:

Regarding the earlier question about caltraps and land mines:

They pose a severe risk to fire fighters, emergency medical personnel and other innocent people coming onto the property for lawful purposes.

Their biggest problem is that they are undiscriminating. You can go charging in with a shotgun, firmly determined to "kill the SOB," but you have the opportunity to not do so, if you determine there is no justification to do so. not so with a booby trap. Most states have serious penalties against booby trapping.

wfjag, thank you for your response. I didn't have in mind any special duty arising from the fact that this was a person with a medical background (he could be a beginning first-year, with no relevant training), though, nor concerns about Good Samaritan laws that bear upon voluntary undertakings to render care in emergency situations. Instead, I was asking if anyone in this medical student's position, be they a butcher, baker, candlemaker, or whatever, would have a duty to help the attacker they had just grievously wounded as a result of defending themselves. Could they be successfully sued (anyone can be sued, but the question is whether successfully) or criminally prosecuted if they didn't do what they could do, provided they would not be putting themselves in physical jeopardy by doing so.

I think it pretty unlikely that a medical student could be sued (successfully) for medical malpractice (which would require that there be a duty, however that duty came about) because they attempted to render care when there was no one more qualified to do so present on the scene and the need for action was so urgent. Furthermore, if the person sued is not licensed, I don't know that there would be any report to a licensing authority or the National Practitioner Data Bank. I believe that house officers (interns, residents, and fellows) are provisionally licensed for purposes of their training, so it may well be different for them than for a student. And unless an insurance company steps in to pay a judgment, I'm not sure there would be any reporting.

There is nothing in any articles that I have read about this case that states the sword wielder was a medical student. Johns Hopkins is a university with a great medical school, but a very good undergraduate program, too.

Does anyone have a cite that shows him to be in medical school?

yankev:

Porkchop, I Am Not a Swordsman but drawing cut does not mean a cut that you deliver while drawing the sword from its sheath. It means a cut that you deliver by drawing the blade toward you rather than thrusting it away from you -- someone above compared it to the motion you use when slicing a roast beef.

Actually, in iaido, a drawing cut (nukitsuke) does mean a cut that you deliver while drawing the sword from its sheath. Iaido is the art of drawing the blade and cutting in the same motion. It is one of the distinguishing features of Japanese swordsmanship.

martinned:

Like I said: some people do value their TV more than a human being.

To be more accurate

Like I said: some people do value their TV more than a ...

vile mutt who has decided to steal your goods.

That's why down in Texas, we give 'em a fair trial and all the appeals rights but at the end of the day we stack 'em like cord wood.

Folks discussing whether a jury would convict should remember that first an indictment must be obtained. This means a trip to the Grand Jury for the prosecuting attorney representing the district attorney's office.

In states like Texas, Nevada, Florida and Alaska prosecuting attorneys have learned from their experience at being laughed out of the grand jury chambers that the attorneys have less chance in getting an indictment than a snow ball has in hell.

porkchop:

Actually, in iaido, a drawing cut (nukitsuke) does mean a cut that you deliver while drawing the sword from its sheath. Iaido is the art of drawing the blade and cutting in the same motion. It is one of the distinguishing features of Japanese swordsmanship.

The term I learned was draw cut vs. drawing cut. In a draw cut, the blade is moved (drawn) along its axis as it cuts. A drawing cut is a cut made while drawing the blade from its sheath. It would tend to also be a draw cut.

ok, I stand corrected.

@Neurodoc:
I'm not being kind. However, your questions raise some of the more morally controversal, but legally well-settled, issues of tort law. Sections 314, 314A &314B of the Restatement (2d Ed.) of Torts, and their comments lay out the issues.

Generally, the answer is that there is no duty to help someone in distress. Restatement (2d) of Torts §314, entitled Duty to Act for Protection of Others, provides: The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.

Comment (c) to §314 clarifies this point: The rule stated in §314 is applicable irrespective of the gravity of the danger to which the other is subjected and the insignificance of the trouble, effort, or expense of giving him aid or protection. To ensure that no doubt remains as to the implications of this rule, Comment (c) explains that the result of the rule has been a series of older decisions to the effect that one human being, seeing a fellow man in dire peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other drown.

Such decisions have been condemned by legal writers as revolting to any moral sense. Thus far, however, they remain the law throughout the U.S.

Restatement (2d) of Torts §314A provides: (1) A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others; (2) An innkeeper is under a similar duty to his guests; (3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation; and, (4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

The Restatement, however, recognizes no similar duty on the part of a medical professional. Still, I can see that an argument could be made that based on a state's Good Samaritan Laws or Patient Abandonment Laws (providing that a medical provider who stops to render aid at an emergency does not engage in patient abandonment when EMS or other, regularly employed providers arrive and take over the care), that the common law has been modified so that §314A's standards apply and there is a duty on the part of a medical professional or student to render care until EMS or other regularly employed provders arrive.

Finally, §314B provides: (1) If a servant, while acting within the scope of his employment, comes into a position of imminent danger of serious harm and this is known to the master or to a person who has duties of management, the master is subject to liability for a failure by himself or by such person to exercise reasonable care to avert the threatened harm; and, (2) If a servant is hurt and thereby becomes helpless when acting within the scope of his employment and this is known to the master or to a person having duties of management, the master is subject to liability for his negligent failure or that of such person to give first aid to the servant and to care for him until he can be cared for by others.

The second obligation stated in §314B could arguably provide support by analogy for extending the duties in §314A beyond the special relationships recognized there, and conclude that all medical professionals have a duty to provide emergency aid.

By themselves these are quite interesting tort questions. Further, assuming that a licensing committee where Med Student decides to practice concludes that Med Student had an ethical duty to provide care to the perp he'd wounded, it would be much easier to argue for an extension of §314A to impose a duty on all medical professionals to provide care in emergencies since the medical profession had possibly recognized that as a professional ethical obligation.

The legal profession is struggling with -- and has been for a long time stuggling with -- the questions you raised. Maybe our analysis would be helped if we spent more time listening to medical professionals on these issues.

Why shouldn't plumbers be required to render aid for a broken water pipe?

Plumbers don't take an oath starting "First you do no harm", and not many folks drown when the pipes freeze and then burst.

Still, I'm willing to entertain the idea that plumbers should only be allowed to charge straight time for calls on weekends, nights, and holidays, since the plumbing seems to work fine during normal working hours, and only have problems when plumbers charge time and a half or double time. However, I wonder how plumbers feel about my willingness to require them to work for reduced rates?

The most relevant question for the prosecution here is: Was the thief a pirate or a ninja?