Self Defense, Defending Yourself, Castle Doctrine, Hand to Hand Combat, Mutual Combat, Physical Beating
What To Do When… You Have To Defend Yourself.
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What To Do When… You Have To Defend Yourself.
What To Do When… Intro 00:01
Welcome to What To Do When… A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Jackie Critzer 0:28
Hi, welcome back to what to do when a podcast here Critzer Cardani in Richmond, Virginia. I’m Jackie.
Scott Cardani 0:35
I’m Scott, what’s on the docket for today Jackie?
Jackie Critzer 0:38
What To Do When… You Have To Defend Yourself.
Scott Cardani 0:42
Yeah, this has really become a big issue, I think in the state of Virginia, and if not nationally, and you’re seeing a lot with police officers who feel like they had to defend themselves and individual store owners, storekeepers, all kinds of people. And then it comes down to our individual self. And, and this comes up when, for instance, somebody comes up to you start to fight with you. swings at you hit you, whatever it may be, and what’s your response? What are you allowed to do? And what Aren’t you allowed to do?,
Jackie Critzer 1:14
Well. self defense isn’t a new thing in the law, right? I mean, that’s been around a long time.
Scott Cardani 1:20
Yeah. But it has really shifted in this whole thing of, there’s a thing called basically in a law called imperfect self defense. And what the court is supposed to look at as your reasonable response to the force that was applied to you. And as you well know, the problem with one person’s reasonable response might not be another person’s reasonable response. For instance, if you have a judge who believes violence is never okay, and you hitting back may not be a good thing for them. So it really does come down to the judge a lot of times on what they believe, to be a reasonable response, which I honestly find offensive to the core of me. And anybody who knows me knows that because this is, this is a big problem, because I think constitutionally, we have the right to self governance first. And I think that’s the issue when you are when you are self governing yourself. Say I’m, here’s how I put it. I’m mad at Jackie. I think she did something horrendous to me where it is, I don’t care. She’s poured gas, she poured sugar in my gas tank, or I just don’t like her. I have to decide how I address Jackie and do it in that constitutional framework of I’m responsible for my actions, how I act what I do. So there’s a there’s a risk to me. I can’t just go up and slap her, like, you know, then she has the right as far as she’s gonna slap me back.
Jackie Critzer 2:52
Well, you’re kind of talking about a maybe a revenge or retaliatory sort of behavior, too. Right. But if but I like where you went, if if you came up to me and slapped me, and I slapped you back? That seems reasonable.
Scott Cardani 3:07
It seems fair, he’s gonna and I do believe most courts will find that to be fairly reasonable. But I mean, I’ve had cases and I know, my client would let me say this, so I can say it. But where one person grabbed the other person around the throat area, you know, the client that I had thought he was being choked out, the other guy, of course denied it, because remember, a child’s going to be Jackie statement versus my statement. But still, you have somebody who’s holding somebody around the neck. Admittedly, that’s that’s what everybody agreed to. My client is striking the guy they go down wrestling fights over, and a judge saying, Well, I think you hit him too hard. And really, and that was the insane result. And everybody in the room is looking at what? So it becomes like are you supposed to hit? Is that hard enough? Is it going to stop you is that going to repel you what’s going to repel you.
So, you have to take into account to that, that if somebody thinks they’re being choked out on that this person is trying to kill them, that’s going to trigger a different response than getting hit in the face or punched in the face or something less aggressive, right? So the the response has to be measured with the force that was used to begin with.
Absolutely and then you get into the victimization of our culture, which I believe is a big thing and how people feel about certain things can really trigger them based on their past and their thing. And what we may think is that push to them may be a very abusive thing because of their past. So I realize all that plays into it. But I think at the same time when you endeavor to put your hands on somebody in some way, shape or form, I think the way it used to be almost as you stepped into the fray, so whatever they do back to you is on you. And we’ve really taken years and years of chopping away at that now it’s like this reasonable standard. I get that If Jackie comes up and slaps me in the back of the head, and I pull out a gun and put 12 bullets in her, that’s probably not reasonable. unreasonable, I would say, I would say it’s unreasonable to but then I look at the other side of it, though, Jackie should have never came up and hit me in the back of the head. She doesn’t know who I am. What trauma I’ve suffered, maybe my dad molested me for 20 years. And one of the things he always did was hit me in the back of the head.
Jackie Critzer 5:21
Scott Cardani 5:22
And when she, when she hit me, that triggered me such a in every single, we can’t worry about trigger. Well, it happens all the time. And, you know, it’s kind of like, that’s really funny, because we take in personal injury, what’s called this soft shell approach, which is, if I do hit Jackie, and she has a malformation her head and I kill her. It’s my fault for doing that. Right. I shouldn’t have hit her. But we don’t take it that way in the criminal law as much. So that’s what I’m talking about. I just, obviously have a lot of passionate about this, because I just think we’ve taken in schools like for instance, if you’re a student at school, and somebody comes up and starts a fight with you and you fight back, what do we do? We kick them both out?
Jackie Critzer 5:22
Scott Cardani 5:23
And it’s like zero tolerance, zero tolerance. What what are you supposed to do? You’re supposed to sit there and get beat. And quite frankly, I’ve had the cases where the kid allowed himself to get beaten, he still got kicked out for being involved in the fight. And I guess, what the heck’s going on here?
Jackie Critzer 6:06
Scott Cardani 6:06
What are we teaching people? We’re saying to the bully or the aggressor, you get that matter, you’re gonna get the same punishment, whether you’re the aggressor, or not the aggressor, it’s the, it’s the dumbest way of looking at things I can possibly think of it, the voids logic. And a good friend of mine, who’s prosecutors probably listening is cringing right now. Because her and I have a difference of opinion on this. But what I’m saying is, if somebody comes up and punches you, and you punch them back, and I knock a tooth out, the courts gonna look at you created a malicious wounding you cut their skin and broke their tooth. And I’m saying all I did was punch him back. Right? You know, and they’re gonna tell you, you obviously did more than he did to you. And I just don’t know how in the heat of passion, when there’s a fight going on. And you’re in fight or flight mode, how you can possibly garner the right response at every right time and hit with the exact amount of force as to repel the person. But not…
Jackie Critzer 7:17
Well, and I mean, I think you came along same era that that I did, where my parents said, I don’t want you throw on the first punch, but you better throw the last one to defend yourself, right? And I know that my children No, no, don’t go looking for a fight, but don’t get your butt beat either. And I’m suspect your children, forgive me a little bit similar instructions. But But today, telling them to defend themselves could very easily lead them down a path of being prosecuted for being too aggressive.
Scott Cardani 7:48
Malicious wounding, or something like yeah, it’s great. I mean, it’s crazy. And sometimes they only look at the beginning, beginning of how the thing started, right. And it’s just getting way out of hand. But and that’s where self defense, and you have to have somebody understands, though defense knows how to argue it. And quite frankly, in this day and age, I think a lot of times, you have to take a jury trial, if you go that far, which quite frankly, is a lot more money. But if you’re protecting your right against a felony or a prosecution or something you didn’t do these things have to push. And I really believe they had to push all the way back up to the Supreme Court to get this back to a place of reasonableness for real. And it’s like, for instance, okay, I’ll give you an example. This is what I think about all the time. So it’s a big deal for me, say, Jackie walks in here and pulls a knife and puts it at my throat. Okay, what’s my reasonable response at that moment? You know, obviously, if you can back off, it’s probably just smart to back off.
Jackie Critzer 8:41
Well, I have a question about that. Do you have a duty? Or what is the court doing with the last chance to retreat? Do you have the last clear chance to to retreat? And is that I mean, in other words, if I walk into the room, I walk into this building on our floor, and I hold a knife to your throat? Clearly, there’s several egress on our honor floor. Do you? Are you supposed to try to get away from my knife? And then run away? Or can you not do that and defend yourself?
Scott Cardani 9:12
It becomes a real tricky wicket. But really, the idea is that if you’re in your home or in your surroundings, and I would guess a business would qualify for that, okay, you don’t have to retreat as much and you don’t have that obligation to retreat. It’s called the castle doctrine. Even though Virginia doesn’t really call it the castle doctrine. It’s really saying my home my castle I don’t have to I don’t have to run in my house. And I have funny stories about that whole thing where there was a case in Virginia Beach where my understanding of the case was the officer knocked on the door knew that there was a shooting on the oceanfront or somebody broke in and the guy had had shot the intruder. Intruder was sort of halfway in the house and halfway out of the house and the cop somewhat encouraged him to pull them a little further out. So he didn’t have to pull them no further Excuse me. So he was actually inside the curvature of the house. Because what happened was when he shot him, he blew him back because I had a pretty big gun. Out of the blue and pretty far back through the plate glass window and like half out so they I can tell you the funny story but basically encouraged him to get him back in before he walked in. So oh, he’s in the house great.
Jackie Critzer 10:10
So different standard based on whether I’m maybe we’re not in our business, but maybe we’re upstairs visiting a different business and I walk in and then hold a knife to your throat. So there’s a difference between hand to hand combat. I hate to say it like that, but that’s exactly what I mean. Versus you’re in your home and there’s an intruder coming into your home one way or another.
Scott Cardani 10:31
Yep. And then there’s also a mutual combat if both of you agree to throw off gloves and fight you know, that’s a whole nother issue and a whole nother doctrine. And but what happens all the time in these cases if in Jackie’s bad example, so I’ll use Darrell her husband, Darren, I decided we’re mad each other we just want to fight it out. But then I get wimpy I won’t use Darrow I get wimpy our leader because he kicked my butt and I go, I go to the cops and take out assault charges. You think? You think I’m gonna admit that it was mutual combat? Probably not. I’m gonna say he attacked me. Sure. And the same thing. I’m gonna get back to the knife real quick. That guy forgot. But I did. So then I slit my throat. What’s my reasonable response? Most people say, Well, you had to pull a knife too. Well, what if I didn’t have a knife? What if the only thing I had was my concealed carry? And I pull it out? And what if I shoot, you have entered the fray brother. But I’m not saying you shouldn’t defend yourself. Don’t get me wrong, because I fully believe in self defense. But my point is, I’ve seen the situation where they charged the guy the gun with brandishing his firearm. He’s trying to back off the person with a knife. You know, it really is it’s gotten so silly,
Jackie Critzer 11:43
We’ll make it even more complicated. And let’s say it’s a rubber knife. How do you know? How do I know you, all you see is a knife and all you feel is this tickle at your throat because I’ve got a knife at your throat, you don’t know that it’s a rubber knife, and I couldn’t actually do harm to you.
Scott Cardani 11:59
Well, there’s also a doctor when they train cops. But basically, and I can’t remember the amount of seconds but it’s so many seconds for you to draw your gun might be 10 seconds, and actually aim it, shoot it at somebody. And so if somebody is coming at you, you have milliseconds to respond. And you don’t always have the luxury of figuring out whether that guy’s a real guy real gun he’s really coming at you are he’s gonna stop at that two inch line for our cop the trigger and not pull it all those things are real responses in the moment and you cannot be expected. I say this, you cannot be expected to grasp all that. And what you know what the people who hate guns would say, Well, you shouldn’t ever carry the gun that would have happened. So I get choked and strangled, or cut on…. my throat cut. And that’s okay. It just makes no sense.
Jackie Critzer 12:53
Maybe they had a gun or whatever the case.
Scott Cardani 12:55
I think it comes down to this, what people really need to understand that we are going to do some more content, more podcast on self defense, obviously, I get worked up about it. But this is no joke anymore. And if you’re going to claim self defense, you need to be aware of your circumstances, you need to be aware of what you’re doing. And I realize heated passion you may not be but you need to get a good lawyer behind you. Because like I said, if you hit the guy back, just say it’s fisticuffs, you’ll say it’s, you know, guy comes out and punches you in a bar, because you talk to his woman. And you hit him back and you break his nose, you know, you’re probably gonna get charged. And so you’re gonna have to bring a self defense claim. And that may need people in the bar and witnesses and all those kinds of things. Because he said, she said, in my estimation isn’t cutting it anymore. So…
Jackie Critzer 13:50
Well. And on that though, you’re talking about the reasonable standard, right? That’s, that’s really where that falls in. And just keep in mind, you don’t know, your judge, probably. And you don’t know what it’s going to take to convince that judge or jury for that matter. You don’t know what it’s going to take to convince them that your response was reasonable. So all of these things, it’s just important to keep each piece of of what Scott saying in mind as you’re as you’re navigating just this initial broad brushstroke of self defense, when we’ll get into the like Scott was saying we’ll get into the others, other pieces of it more specifically in the podcast to come. But so you’ve got to be aware of your circumstances. Remember that you’ve got a judge or a jury to convince that your response was reasonable.
Scott Cardani 14:36
Absolutely. And I think I think like I said, it comes down to you have to have an attorney who understands self defense, and understands all the different case law, that’s out there. And sometimes you may be the very one who needs to push this all the way up. So some of this law can start going back. The pendulum has swung so far, we need to swing that pendulum back to a real reasonable standard, not what some person interprets to be a reasonable standard.
Jackie Critzer 15:03
So, in our next podcast on self defense, we will talk about the castle doctrine and how that applies in Virginia or whether it applies in Virginia. We will talk more about imperfect self defense as well and some recent headlines that we’ve had here in Virginia with the imperfect self defense and what was the outcome of that and we will cover some some deeper issues inside the envelope of self defense.
And we’ll try to get Will Smith III in here. So thank you all.
Thanks for listening, be sure to like and subscribe.
What To Do When… Outro 15:31
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