Originally Posted by
Blue Order
If the cyclist is using a u-lock, that may be true. If the cyclist is using a submachine gun, that would not really be true. Even if the use of the submachine gun met the legal standard for self-defense (i.e., if it was used in a way that the force used was “reasonable”), its use would still be in violation of federal law. Same thing for other outlawed weapons.
Your point about the SMG is true, although not really relevant If the cyclist used a SMG as a club to reasonably defend himself, his self defense claim will stand, even though he may be charged with unlawfully possessing a machine gun. But my only point is that self defense looks at the reasonableness of the force used, not the precise weapon used.
That doesn’t seem true from an intuitive perspective, and my guess is it wouldn’t be true if subjected to some simple physics calculations.
Looking at the injuries is sufficient to determine that the force was reasonable.
He stopped, and then he waded back in to take a few more whacks after the pedestrian had stopped engaging with the cyclist. Even assuming that the cyclist had been defending himself previously—an assumption that would only be true if his first swing of the u-lock was in response to an attack or threat of imminent attack from the pedestrian—his self-defense ended when he waded back in, and what occurred after that point was assault.
Sorry, no. In the real world, the half second pause will not count. If he left and came back, sure. If he stopped for 5 seconds and then started up again. But no jury in the world would find that the last two strikes were battery, but the first several were self defense. That level of granularity just does not apply.
That’s a good question, but it’s not really the only real question. If a prosecutor had this video as evidence, he/she could file charges against the cyclist based solely upon the video evidence. The prosecutor would not be hamstrung by the lack of audio; in fact, quite the contrary.
Well, of course he could. But in a real case you won't just have the video, you *will* have testimony from the people involved.
Of course, the cyclist could argue that the pedestrian threatened him with imminent attack, but where’s the evidence for that? There’s no audio to indicate that the cyclist was threatened, and the pedestrian’s actions just prior to being hit don’t indicate that the cyclist was being attacked, or even under imminent threat of attack. So all the cyclist would have in support of his argument would be his claim that he was threatened—and that would be countered by the pedestrian’s denial and the lack of any corroborating evidence on the video. Because there’s no evidence that the cyclist was threatened, but there is evidence that the cyclist threw the first blow, the cyclist’s (hypothetical) uncorroborated claim that he was threatened would be unlikely to counter the evidence against him.
The evidence of imminent attack would come from the cyclist's statement that the ped threatened him with imminent attack. Of course the ped can deny this. And it will be up to the jury to determine who was telling the truth. The prosecutor has the burden of disproving the self defense claim beyond a reasonable doubt, however, so he has more of an uphill road to climb.
Evidence that the cyclist threw the first blow (which I have a hard time seeing on the video, but I'll assume for these purposes that it's present) doesn't help us decide which witness is more credible. If the cyclist is telling the truth that he was about to be attacked, he is allowed to take the first punch. Knowing that he took the first punch doesn't help us decide whether he is telling the truth. (Obviously, if the film showed that the ped took the first punch, this would help the cyclist with his self defense claim - but the cyclist taking the first punch is neutral given the rest of what we know).
Because of this, if he truly was threatened, it would be virtually essential to have any witnesses to the altercation testify that they heard a credible threat made against the cyclist just before he struck the first blow (or alternately, to testify that the pedestrian attacked, unseen by the camera, just before the cyclist struck his first blow).
The more witnesses the better, of course - but the cyclist's uncorroborated statement is just as good as the ped's uncorroborated statement. Note that the ped will also have to explain why he kept following the cyclist. There are plenty of explanations he can come up with, of course, but it's overall not that helpful to him.
The prosecution and defense is mostly theoretical, however. What would most likely happen in the real world is the prosecutor would charge the cyclist with the most serious charge he could press, and then would offer to let the cyclist plead down to a lesser charge. In some states—Oregon, in particular—the attacker would be facing serious prison time for using a deadly weapon, and the defense would have very little room to bargain. As a consequence, defendants regularly plead to lesser charges, because the alternatives are so much worse.
That rarely happens to self defense claims here unless they are completely bogus; our prosecutor routinely sends cases with plausible self defense claims to the grand jury to see if they will indict (one of the few uses our grand juries still have). Also, a regular citizen (which I assume the cyclist is) is much less likely to accept a plea bargain if he believes he is in the right.
And, again, we don't know why the cyclist was being followed or what sort of exchange the two men had, so it's also hard to know how justified that the cyclist may feel.