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How Am I Being Charged With Domestic Violence / Assault When I Acted In Self-Defense?

January 31, 2013,

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Oftentimes clients call confused as to why they are being charged with an assaultive crime (assault and battery, domestic violence, etc.) when they believed that they were acting in self-defense. The police have to respond to allegations of violence, and where somebody alleges that they were attacked that will generally be sufficient to get a case brought into court. Sometimes one party will be charged (often the case) and other times both will.

Self-defense is one of the most common defenses in criminal law, and where the defense is successfully put forth it negates a crime of violence. Where we can show that our client acted in self-defense, the prosecution then faces a greater burden at trial. The prosecution must then show beyond a reasonable doubt that the assaultive crime occurred and moreover show beyond a reasonable doubt that the defendant didn't act in self-defense. The following elements must be shown in order to establish a valid self-defense claim.

1) The defendant must have truthfully believed that the aggressor was going to use physical force against him, her, or a third person. So long as non-lethal force was applied the defendant need not have believed the aggressor was using deadly force.
2) Objectively, the belief of an imminent attack on the defendant must be reasonable. This means that neutrally looking at the defendant's actions his or her belief that force was going to be used was a rational belief.
3)
The defendant honestly thought the amount of force used was appropriate.
4) Objectively, somebody would find that the defendant used an appropriate amount of force.

This is a pretty classic objective/subjective test - meaning that it must be shown the defendant thought his or her actions were reasonable and further that they were objectively reasonable. If the above elements are shown, self-defense is established, and the defendant is not guilty of the assault crime. Nonetheless, if prosecution shows the following, a self-defense case will fail.

1) That the belief of force or force used by the defendant was unreasonable.
2) That the defendant was the initial aggressor.
3) There was an agreement by both parties to enter into a fight.
4) If more force than necessary was used by the defendant to subdue the initial aggressor.

The following are factors that our office will evaluate in building a self defense case;

1) The relative size of the aggressor to the victim;
2) If the aggressor has a history of violence;
3) Any military or martial arts training;
4) The presence/threat of a weapon;
5) Whether there were multiple aggressors;
6) Social media activity including taunts/threats;
7) And/or prior threats by the aggressor.

Practically speaking what does this mean? The defendant must not have started the fight, must have honestly thought he or she was about to be attacked, and used only enough force to protect him or herself. Oftentimes people being charged with assault DO have valid self-defense claims. If you are being charged with such a crime you would be wise to contact an attorney to discuss the circumstances of your case and evaluate the merits of a possible self-defense claim.

Michigan Crime of Assault With A Deadly Weapon (FELONY ASSAULT); No Physical Contact or Injury Is Required

July 20, 2012,

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The offense of Assault with a Deadly Weapon (ADW), is also known as Felonious Assault in Michigan. ADW is felony which is punishable by up to 4 years in prison. ADW is a crime which involves an assault with a deadly weapon (such as a gun or knife) or any other instrumentality which is fashioned or used as a weapon (car, club, bottle) which is capable of inflicting serious bodily injury or death. A criminal charge or conviction does not require actual physical contact or an injury. The offense is considered complete upon placing another in fear of an assault by a person who possesses a deadly weapon. A person charged with ADW in Michigan may assert several defenses including: lack of intent or self- defense.

INTENT: The prosecutor must prove that a person had criminal "intent" to cause an injury or an intent to put the victim in reasonable fear of an immediate battery. Unfortunately, our criminal defense lawyers have seen many misunderstandings and over charged cases when a person is in possession of a weapon or object during a heated argument which is never intended to be used aggressively to harm anyone. This often is the case in domestic violence cases where a spouse or significant other is intoxicated and angry, has a knife or dangerous instrumentality and utilizes ambiguous words which are misconstrued in the charging process. I think the police are more apt to charge ADW to be on the safe side and avoid being accused of being lenient on domestic violence offenders. An aggressive criminal defense lawyer can often neutralize the situation by exposing weaknesses in the prosecutor's case.

DANGEROUS WEAPON: In addition to the element of "intent", ADW requires that the aggressor have a weapon or object which can inflict death or great bodily harm. A plethora of objects have been declared to be dangerous weapons in cases which involve ADW. A car, golf club, shoe boot, cane, ashtray or beer bottle have been construed to be dangerous weapons which may support a conviction of ADW.

ADW and assault crimes are closely associated with Domestic Violence cases which our firm handles extensively. As criminal defense lawyers in Macomb County, we have successfully defended ADW cases and have avoided felony convictions and jail for our clients. Avoidance of a felony conviction can occur by effective plea bargaining to have the felony charge of ADW reduced to a misdemeanor such as simple assault and battery. Every detail is important in the defense of an ADW case. The facts may indicate that a person was acting in self-defense or lacked the requisite intent. The prior assaultive history of the defendant and victim are also relevant. The mental health history of the parties may also come into play. This information may be utilized to resolve a case before trial even though the same evidence may not be admissible at trial because of relevancy, privilege or hearsay pursuant to the Michigan Rules of Evidence.


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The Right to Act in Self Defense and Michigan's Stand Your Ground Law

April 16, 2012,

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Assaultive conduct or deadly force will be particularly scrutinized by law enforcement officers and prosecutors for possible criminal charges. Under certain circumstances, an act of assault may be excused or defended if the use of force was based upon justifiable self-defense. The following is a list of assault crimes in Michigan:

  • Assault and Battery
  • Aggravated Assault
  • Assault with a Deadly Weapon
  • Assault with Intent to do Great Bodily Harm
  • Assault with Intent to Murder

A criminal defense attorney will also explore every minute detail which can be utilized to pursue a theory of self defense.

Self Defense Background, Duty to Retreat Except at Home

A person's right to act in self defense in the face of an assault or attack is a qualified right which has evolved with the times. Under prior laws, one had a duty to retreat when it was reasonably feasible to do so. The duty to retreat does not apply within one's home. Under the Castle Doctrine, a person has no duty to retreat (from an assault) and may defend himself (self defense) within his own home. This is based upon English Common Law which gives protected status to one's home under the theory that a man's home is his castle. The Supreme Court ruled in Beard vs. United States (158 U.S. 550 (1895)) that a man who was "on his premises" when he came under attack and ... did not provoke the assault, had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm...was not obliged to retreat."

Michigan's Current Self Defense Law, Stand Your Ground

Michigan, like many states, has adopted a stand-your-ground law. The crux of the stand your ground law means someone with a reasonable belief of an attack (assault) may act in self defense, without any duty to retreat, provided that the person is legally at a place or location where he or she has a right to be. Similar to the Castle Doctrine, a person may be justified in using deadly force in certain situations and the "stand your ground" law would be a defense to criminal charges and a civil suit.

MCL 780.972 Use of deadly force by individual not engaged in commission of crime; conditions.

(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.

(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.

(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.

Michigan has become one of many states that has liberalized laws pertaining to carrying concealed weapons (CCW). The plethora of firearms in the hands of individuals will eventually lead to greater use of those firearms. Michigan's "stand your ground" law insures that this will all be played out in the streets and then in the courts.

A recent Time Magazine article, April 9, 2012, "THE LAW HEARD ROUND THE WORLD", covers the "stand your ground law" following the controversial case involving the death of Trayvon Martin. The article asks this question: "When it comes to a confrontation on a dark street, at least two competing impulses come to mind: Do you stand your ground or turn the other cheek? Engage or run?"

Self Defense Education, Knowledge of the Laws, Firearm Training

Our law firm strongly urges anyone who is charged with assault, homicide or has acted in self defense to seek the advice and services of a criminal defense lawyer. We consult with many clients who have CCW permits whom retain our business card in case of an incident. If you carry a firearm or intend to do so, we recommend that you enroll in all available classes at gun ranges to become proficient in the use of your firearm and become a member of the NRA for continuing education about gun safety and your rights. We also urge our clients to know Michigan's CCW laws, Michigan's self defense laws and their personal rights; especially the right to remain silent!

ABDO LAW FIRM
Phone: 586-412-5555