The issue of excessive use of force

In the legal system and among law enforcement

The subject of excessive use of force is a hot one. There are laws that allow for excess when it’s essential, but they differ from state to state. The principles of law that govern the legal use of force internationally are drawn from the ethics of inevitableness and proportionality that lead to the justification.

When is the use of excessive force permitted?

There are many cases where the law and the courts permit the use of excessive force. When someone is fighting arrest comes first. Second, if the suspect is armed, and third, if the suspect or another individual is armed and a threat to the public. Excessive force can also be used as a self- defense, when the law enforcers feel their lives are threatened then they are enabled by laws to use necessary force (Rahtz, 2003). The use of force nonetheless should be justified and not too excessive to the extent of injuring the suspect otherwise the police officers would be found liable.

Using force when a suspect is armed

A gun or weapon on a suspect often increases the law enforcers’ alert signs an individual is reaching for the gun or weapon. Reacting to a threat entails a swift choice; therefore the law enforcers can easily use excessive force in such cases. An individual who is not engaging in an illegal activity and is assaulted by in places where he or she has a right to be can use force to combat the assailant if she or she thinks that he is preventing death or severe bodily harm to themselves or others (Rahtz, 2003). This is particularly the reason most citizens have guns in their homes so that in case they are attacked; they can easily protect themselves, nonetheless, the use of force has to be justified and reasonable.

The right to self-defense for victims

Offenders using unlawful force against other have no privilege of self-defense. Their victims, on the other hand, have the right to defend themselves. Police officers also have the right to self-defense when a suspect seems to be a threat or has a firearm or weapon. Often in self-defense cases, it is crucial to determine who the first aggressor was. Suspects who resist arrest are often met with force, and the laws do allow it. The arrest nonetheless has to have probable cause. Driving under the influence of alcohol or drugs is an offense in many states. It might be difficult for compel an uncooperative person to offer a breath or urine test. The law upholds that police and prosecutors can take a forced blood sample without the consent of the suspect, however, the sample has to be taken under logical conditions (Rahtz, 2003). Use of force is justifiable as mentioned above, but it has to be rational and justified, too much might cause death or bodily harm which will be punishable by law.

The Castle Doctrine and “stand-your-ground” regulation

The Castle Doctrine and “stand-your-ground” regulation are defenses for people charged with homicides. The castle doctrine is a normal bylaw doctrine affirming that a person has no obligation to draw back when their home is intruded or under attack. Therefore they might use justifiable force even deadly force to defend themselves, other people and their property. There are general rules however that must be satisfied for the castle doctrine law to apply that is assailant has illegally entered one’s home, he or she is acting in an illegal manner, for instance one cannot shoot a law enforcer who is in their home legally, the intruder purposes to harm or kill the individual and finally the home owner never provoked the attack (Beccaria, 2009). Out of the home nonetheless, a person has an obligation to retreat if possible prior to using justifiable force. An individual, however, has to be careful in case of trespassers. If someone is merely trespassing against one’s property or might be lost and is not committing any crime, this law does not apply, and one can be held liable. This law is quite valid as it gives citizens the power to protect themselves and feel safe in their own homes or businesses.

Stand-your-ground laws

Stand-your-ground laws, on the other hand, take out the common law condition to retreat outside of a person’s home. He or she can use force in self-defense if there is a justifiable threat. Deadly force is rational in these instances. In a majority of the states with this law, a claim of self-defense under this law gives immunity from prosecution instead of confirmatory defense. This implies that, instead of presenting a self-defense case at a murder or assault trial, a person may allege self-defense under the stand your ground rule and evade trial in general (Dressler, 1995). This law is reasonable has it gives people the right to defend themselves against foreseeable attack. It prevents possible injuries, sexual assault, and probable death. Once the intruder is in the property, the victim may not have the power to defend themselves particularly if there are more than one attacker or are caught off guard.

The Double jeopardy clause in the 5th amendment

The Double jeopardy clause in the 5th amendment to the US constitution states that ”No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb.“ (Dressler, 1995). Majority of the state shave the same assurance for defendants who appear in the same court. This clause has several purposes; it stops the government from utilizing its resources to faultily convict innocent individuals. It safeguards citizens from the fiscal, psychological and social implications of consecutive prosecutions. It preserves the conclusiveness and integrity of criminal trials which would be altered if the states were permitted to ignore rulings they are not happy about. This clause constraints prosecutorial diplomacy over the charging process and finally eliminates judicial discretion to enforce collective punishments otherwise not precisely forbidden by law.

The fairness of the Double jeopardy clause

Double jeopardy clause is quite fair as it keeps the government from exploiting the citizens. Also, a complainant might bring a case against a defendant over and over again in spite of it being dismissed. Such a clause is quite helpful here as it safeguards the welfare of the accused and ensures there is no harassment and justice is done. Additionally, there is no wastage of resources and time for both court and the parties involved (Dressler, 1995). Additionally, the innocent people acquitted now have peace and can reintegrate to the society peacefully without fear of being prosecuted again for the same offense. Additionally, there would be a thorough investigation by the prosecution since they know there is no second prosecution, therefore the justice would be served fairly.

Adversary system in the Australian legal system

Adversary system is a trial system employed by the Australian System when settling disputes. There are main features of this system including, the duty of the judge, responsibility of parties, regulations of evidence and procedure, Standard and burden of proof and necessity for legal representation.

The advantages and disadvantages of the adversary system

Adversary system might have some advantages however it might be ideal for simple cases. When it comes to complicated cases, there is a high chance of injustice being done. This system causes the two parties to compete against each other sometimes even resorting to illegal approaches, a majority of the cases in this trial result in settlement or plea bargain (Robinson, Grall & Moskovitz, 1984). This might lead to injustice particularly if the accused is represented by an unskilled attorney. Additionally, the judgments made are motivated by arguments rather than evidence. The adversarial system is a very slow cumbersome process. At times it can even take years, and the judge cannot do much to hasten the process. Adversarial might be ideal for simple cases however it s not recommended for complex cases such as murders and such.

The right to a speedy trial

The sixth amendment allows for a right to speedy trial. Speedy trial is significant since as time goes, memories of what occurred in a particular place or date might be forgotten. Law enforcers have a duty to provide a report of what happened and when done fast, they generate accurate results.

Advantages of a speedy trial

There is risk that records might not be kept well. Additionally, there is the issue of transfers, when a case drags on for a long time, there is a possibility that police officers handling the case might get a transfer or retire and changes to places where evidence is present. Therefore revisiting it might prove difficult. Speedy trial saves a lot of resources as congested detention facilities will be relieved. An innocent person will not spend too much time in jail. Additionally, the accused do not stay in limbo for years before realizing the outcome of their cases. Speedy trial ensures economization of resources and time. The defendants, plaintiff and their lawyers will have time to commit their time and resources to other areas. The defendants and accused do not suffer emotionally. Speedy might seem reasonable; however, it may be detrimental in capital offenses that require solid evidence like murder charges.

References

Beccaria, C. (2009). On crimes and punishments and other writings. University of Toronto Press.

Dressler, J. (1995). Understanding criminal law. Matthew Bender.

Rahtz, H. (2003). Understanding police use of force. Monsey, NY: Criminal Justice Press.

Robinson, P. H., Grall, J., & Moskovitz, M. (1984). Criminal law defenses (Vol. 2). St. Paul, MN: West.