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If you had statistics suggesting that tackling onto concrete presented a risk of serious bodily injury or death comparable to being shot or stabbed, then you could call someone like an epidemiologist at trial to testify to that effect. And it would be a fairly strong defense, if tempered by the fact that the prosecution would call their own expert reaching the opposite conclusion. That's not relevant here, though, because Hayes shot the guy after he was tackled. You're only privileged to defend yourself out of apprehension of an imminent threat, not out of a response to a past threat. Once Hayes was on the ground he wasn't getting tackled again, and any argument about the supposed dangers of being tackled on concrete is moot.
The point is that anyone crazy enough to run through traffic and tackle someone onto concrete is someone who while the scuffle is on going is crazy enough to do a whole sort of things. That is shooting someone seconds after that happens is reasonable self defense.
Go ahead and make that point at trial... and prepare to get destroyed on closing. Seriously, if I'm the prosecutor in this case, I can pretty much ignore whatever other arguments you've made (or just hit on them briefly) and run that point to the end of its tether. "Is someone acting crazy? Who knows what they're crazy enough to do; better shoot them before anything bad happens. The defendant wants to convince you that this is a reasonable course of action." I'd then go on to describe a series of examples of "crazy" behavior and suggest that your argument would require them to view any shooting or the perpetrator as justifiable self-defense, and the examples would get progressively more absurd. I'd characterize the entire defense as "people should be able to shoot anyone who looks suspicious", and by the end there's the possibility that the jury would forget that the defendant had even been attacked. If this is "the point", then it's not a very good one.
This is just blatantly strawmanning. The person just wasn’t looking suspicious. The person just wasn’t acting crazy. The person committed a physical attack after engaging in a pretty crazy (ie out of the ordinary) prelude to the physical attack (ie this wasn’t a situation where two guys were squaring off — a guy ran a cross a street to tackle another guy).
If you are worried about slippery slopes suffice to say we can cut the slope pretty earlier. Don’t engage in crazy attacks and self defense then would not be credible.
Oh, it's totally strawmanning. But in court I'm not giving you the benefit of the doubt in any argument; if you say something, I'm going to run with it. Unfortunately you won't get to point out my illogic to the jury because you've already taken your turn, and I doubt your client will take too much comfort in the fact that his guilty verdict may rest on a fallacious argument.
It seems to me that you're simply arguing a policy position; namely, that lethal force is an appropriate response to any attack. And while that's a perfectly fine position to take from a policy perspective, it doesn't get around the fact that the state criminal statutes are pretty clear that this isn't the case — lethal force is an appropriate response to some attacks but not to others. If you don't like this then what you're looking for is a political solution, not jury nullification.
What a bad way to conduct this online exchange. We weren’t in any way discussing what closing arguments we would make. And that’s the tact you take?
And no that’s not what I’m arguing.
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