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Criminal law provides for the well-established structure which is used in determining when, how as well as why one person may be justified to use force against another. This is achieved through the context of justification defenses, which include self defenses, defending others, the public policy defense each of which differentiates the scenarios of legitimate force from that of impermissible exercise of violence. The justification mechanism has been put into place in order to provide balance between interests of individuals as well as those of our moral obligations to one another. .This earns that it puts a limit to the interests which we may defend, measures our level of need required in responding to attacks, maintains balances to the difficulties associated with responding quickly to threats with the costs of the errors, and incorporates limits on our responses which are permissible to the wrongdoing. Assessing the amount of constitutionality of police use of force needs a precise balance as well as similar considerations. Due to this, the law of justification provides a natural as well as a powerful framework that is necessary in providing and evaluating the mount of force used by law enforcement officers.
The structure justifications of defenses should be put subject to the necessary modifications in such a manner that there is a regulation to police violence. The law of justification is very clear not he case scenarios which allow individuals to use force in order to serve particular issue which are well-defined. These issues include protection of oneself or other people under some specific conditions, in cases when that violence is necessary to protect against imminent danger to one self or others and is proportional to that threat. Police are allowed to use force only in the cases which demonstrate a direct distinct interest of the state. Such cases include; facilitating one of its major institution, which is that of criminal law; protecting the public order and protecting a police officer from any physical harm. In addition, even if any of the above named interests is at risk, the force should be considered unreasonable and therefore unconstitutional unless it is one that is directed to a response to an imminent threat to any of the above interests, and the harm that the force threatens is not of equal magnitude to the interest it protects. This way the substructure of justification can be easily used in determining whether the police is justified to use force or not.
The police and the civilians are not similarly situated. The officer's act with the state authority, they are not allowed to retreat under any circumstances, and they have received enough training for them to be able to handle force correctly. These differences affect the manner in which the concepts of imminence, proportionality as well as necessity which compromise the justification standards should be applied to the police usage of force, and the differences are not themselves incidental. In fact the reveal the deep dual structure of the police. Many encounters reveal that police use force but under tensed and emotional conditions which may not be justifiable. An officer who decides to use force in arresting a subject is neither entirely a neutral actor, disinterested a well as detached, charged with carrying out the will of the state, nor just an individual who is acting in the heat of the moment, in the way of harm and vulnerable, and maybe afraid and in pursuit of vengeance.
In such combinations of state authority as well as human agency which are used to distinguish police violence from the other forms of state coercion as well as from other forms of justified force of the individuals. Since the police usage of forces are both determined and imposed by persons who are acting under threat, these acts are unlike punishment, the paradigmatic form of the state coercion , which happens to be detached , very impersonal and institutionally enacted. Since the police are empowered and well trained by the state, in readiness for violence, and never allowed to retreat, their use of force is very unlike that of self-defense, the paradigmatic form of a justified violence. The police have remained quite dangerous and unclear to the judges, as well as the public due to the fact that they depict a dual character. A well understanding of the character of the police is very essential in understanding how police violence clarifies its proper scope as well as limits.
Courts which have been tasked with determination of the reasonableness of the police's usage of force have been provided with guidelines by the U.S Supreme Court which requires them to consider situations which are based on some standard of "objective reasonableness". The lower courts have been directed to look at the facts which surround an officer's use of force as they were presented to the officer at the moment when force was used without relying on the advantages of the second guessing the decision of the officers. Courts have been instructed to confront the facts as well as the case which they were presented to the officer when the decision to use force was being made as well as determining if the actions were reasonable given the circumstances as well as what was known to the officer at the time.
The directive of decision-making was announced in 1985, at a time when the U.S Supreme Court handed down their decision. The study investigates the shooting to death of one unarmed 15-year old juvenile, Edward Garner, for allegedly breaking into an unoccupied home and making away with a $ 10 ring. When the police arrived, Garner made a run. A Memphis police then opened fire and killed Garner. The court then ruled that police officers should not use deadly weapons in prevention of an escape of a felon unless a suspect posed a similar and significant threat of death or that of serious physical injury to any of the officers or fellow officers. In addition t ties, the court ruled that the shooting of Garner was unreasonable violation of the Fourth Amendment. In that effect, the Court did away with the fleeing felon doctrine, which given police the power to shoot at fleeing felon and required that the police weigh between the balance of the hazard less of shooting down a suspect and the crime the suspect had committed with the probability of immediate harm caused by the suspect in case they fled.
The story of Garner clarified many important issues which were concerned with the police dangerous use of weapons. There were many questions however which were raised concerning the applicability to many of the circumstances police used force. The question of whether Garner was applicable to the cases of non-deadly force and how the reasonableness of an officer was determined. The Supreme Court answered these questions by ruling out that the use of force by the police should be "objectively reasonable". That is, the actions of an officer were reasonable in light to the facts as well as the circumstances which surrounded him, regardless of their underlying intentions. The court while appreciating that there it is not capable to set a precise definition of reasonableness requires an officer to consider a number of factors in determining whether an officer is justified t use force or not.
Special concerns in domestic violence's cases
Just like the use of force by the police, the use of force by the victims of domestic violence presents a controversial legal as well as social issue. The complexities demonstrated by gender norms, expectations by the society, the pragmatic explanations of the legal notions of imminence, as well as the various alternatives which are presented by the use of force all contribute to a highly complex field of use-of force litigation. There are various challenges that present complexes in the issues concerning battered-women syndrome, the social context of domestic violence, as well as the effects and the relevance's of the aftermath of stress disorders. The challenges of domestic cases as well as the horrors which are associated with domestic violence litigation's have been thoroughly investigated. A case scenario of a defendant who was charged with shooting her abuser in the head as he slept has become common in this field. At the trial, the defendant, Erick, presented a justification defense, which she argued that she feared that the abuser had planned on killing her when he woke up. The evidence presented at the law court showed that Erick had been tortured for many years, was subjected to beatings, whipping, burning as well as torture with various objects, and also an attempt of hanging. An expert testified the information by stating that, due to suffering from battered-woman syndrome, Erick was not able to see way out of her troubles.
The perception which showed that her attempt to escape would be futile was very significant especially since in New York, as well as some other jurisdictions, there happens to be a duty that is imposed to retreat under certain conditions. The duty requires that a suspect should never use a deadly weapon if she is able to escape in complete safety. At the trial, Erick opposed this mention of a duty to retreat since the stature indicates that the duty cannot arise when an actor is in her home and not quite the initial aggressor. The judge however maintained that it was important to consider language in the jury instructions which suggested retreat was a major issue for consideration. While the duty to retreat should have never been a central focus to the crime charged, the evidence at the trial looked at whether Erick had other reasonable alternatives instead of killing the abuser. One of the discussed alternatives was the friend and the family that Erick had, but she maintained that they would not have been able to save her from her abuser. Evidence in trial showed that Erick's accuser was an extremist who went to the extends of gluing the door to ensure that no one went in or out of the door whenever he was out. The abuser had also threatened Emick that if she ever tried to run, he would find her and kill her. On the day when the shooting occurred, her abuser had choked her and promises to kill her and the children when he woke up. According to a testimony, a friend of Emick, had visited their home on the night of the shooting and had spoken to Emick during several occasions and had suggested that if Emick was to be free, she would be forced to do away with her abuser. The timing of the decision made by Emick was critical since the ultimate question for the jury was whether Emick had any honest and reasonable conviction as well as fear that she was about to face death or serious injury.
Despite the sympathetic nature of the defendant, as well as the inevitable disgust by the jury towards the decedent, Emick was convicted f the first degree manslaughter. Emick appealed citing the fact that the judge had improperly admitted testimony from the belief of the fiends who had visited her earlier at homeland had instructed the jury in an erroneous account with her respect to retreat.
The case of Emick represents many of such cases which have troubling issues that surround the cases of domestic violence. For instance, the case presents a dilemma over which practical alternatives were available to the perseveration of the counter-force that existed and, if such alternatives did exist, when the defendant was legally obligated to have them exercised. Was it applicable effort her to leave her home instead of escaping? The statutes of exception have ruled against this by accepting the duty championing or the fact one should never be forced to be wrongfully driven from their place. However, the cases also points out the question whether, there could have been any other conclusion apart from death or the grave injury of one of the co-habitants?
While admitting that indeed, a thorough treatment of the violence issue is very much beyond the scope of this particular note, the factual circumstances of the cases which result in charges raises the same questions as to those of all-use -of force. The question of whether the conduct was right under the prevailing conditions is very important. Since the many factors that are presented in domestic violence incidents are very common to the use-of -force cases in general, the factors which are addressed hereby help in the provision of additional options for the presentation of a justified defense.
The expects perceptions
Consultants as well as experts witness are useful in helping the attorney as well as the jury to understand the circumstances of the use-of-force case. The testimony of an expert concerning the defendant's likely state of mind, physical capabilities as well as perceptions can be useful into finding out what is really reasonable.
Meeting the challenge
As discussed above, in the different context of self defense, police usage of force, as well as the domestic violence, the decisive issue over which justification turns me just the same. To charge against an offense which is not allowed by the law, a defendant has to establish that the use of force was in effect to a reasonable belief that unlawful harm was definitely imminent, and that the defendant could not possibly exercise any other safer alternatives, and that the amount of force that had been used was practically reasonable. In the cases of the police officers, they are just required to ensure they reasonably believed in the way the y behaved and demonstrate that they have confidence that the manner in which they acted was correct accordingly.
The court has however not been vocal about application of "objective reasonableness" standard to the behaviors of citizen which have been confronted with an act of police brutality. What would be the best response from the citizen who is being severely baste or abused by the police? Is there an allowance for the court to second-guess on what a citizen should do when they are faced with such assaults? Are the considerations only to be checked on the manner in which the victim of the police encounter was abused or not?
This debate has however presented a chance for falseful accusation of the police on the use of excessive force. There are many rules which have been developed, in response to these allegations in order to reduce the allegations. Officers who have deliberately and knowingly used excessive force should be prosecuted the same way as the criminals of other forms of activity are prosecuted. How about those who have been wrongfully vindicated? In the recent past, the DOJ has emphasis zed on the identification as well as the prosecution of cases of using excessive force. In order to avoid such case scenarios, which are tragic, financially devastating, heart-breaking and unfortunate, there are several steps which can help one to avoid such conditions. These include;
(a) Knowledge of the law.
All officers should have the law in their finger tips with the landmark U.S Supreme Court on the decision regarding use of force. If this is not achieved, it means that one is not well equipped with dealing with the daily occurrences which are likely to present such cases. The specific areas of concern should involve the following aspects; the nature of the offense, is the threat directed to an immediate officer or another? Is the person trying to run away? Concerning these three cases, the court has mentioned in more than one times that the " immediate threat" is the most important when it comes to determining whether the use of force was reasonable or not.
(b) Knowing the policy of using force in your department.
It is important to understand the policy of use of weapons as laid out by the department. The jury will be interested in knowing whether one violated the policy. A violation of a policy is not necessarily the same as the violation of the law, but would be used against anyone in an attempt to taint one as a rogue officer or incompetent to that effect.
(c) Use the force legally and to the best of one's ability
It is important to solve the problem quickly. There are cases where officers are lenient to the suspect and this may lead to the officer ending up being harmed and therefore causing more injury it would have been the cases if the problem has been solved quickly. This basically point out to the fact that one should never use excessive force but they should be very concerned on the manner in which they approach a situation which requires them to use force.
(d) Writing the necessary report after the use of force incident.
Each and every time that one uses force, it is very important to ensure that one assumes that they may be sued and charged with excessive force. Having that already in mind, he should then go ahead to write a complete as well as very accurate report. The use of force experts has expressed concern over the fact that most officers do not routinely write good reports after they have used force. I t is however of great value to ensure that one is ready for the next mission with a good report of the previous mission.
(e) Get the necessary help early.
It is important to contact that colleague who is well versed with writing of reports in order to ensure that one is correct and follows the conventional methods required.
(F) Working well with one's attorney
It is important to know your attorney well and ensure that you follow their guidelines. Your attorney is much more helpful if you are completely honest with them. Most of the attorneys are able to give the best representation when they are not treated to surprises in the court room.
Officers should be alert and ready to answer any questions which they are required to provide answers for. One is likely to be asked about the law, policy as well as the actions leading to the events. It is important to ensure that one can comfortably talk about these issues.
While different types of use-of-force cases has continuously involved well distinctive and factual concerns , the most common thread which runs through them is the enquiry into the reasonableness of the specific conduct under any extra-ordinary circumstances. In order to mitigate the controversial use of force, a defendant is tasked with the task of showing that the response was both reasonable as well as appropriate, whether that judgment is based on their own belief or on the belief of a reasonable person who could be in the same circumstances. The jury however, has to sift through the information, ultimately judge on whether the beliefs, the perceptions as well as the responses in question were appropriate and meet the threshold of what they would consider reasonable and acceptable.
Research into the manner of how reasonableness can be measured is continuously being done. In order to have a clearer reasonable analysis, absent considerations of the outstanding effects of stress as well as perception and performance does not allow the jury to have relevant as well as contextual information. The lawyer who is addressing such cases should be able to aware of such intrinsic factor in the determination of the cases. Therefore, applications of scientific evidence, through the available scientific research, consultants as well as expert witnesses can go a long way in the determination of a fairer case. Such information is applicable in almost all cases which involve critical decisions being made under extreme cases of stress.
Nelson, J. (2000). Police brutality: An anthology. New York: W.W. Norton & Co.
Lawrence, R. G. (2000). The politics of force: Media and the construction of police brutality. Berkeley: University of California Press.
Holmes, M. D., & Smith, B. W. (2008). Race and police brutality: Roots of an urban dilemma. Albany: State University of New York Press.
Collins, A., & Human Rights Watch (Organization). (1998). Shielded from justice: Police brutality and accountability in the United States. New York: Human Rights Watch.
The prosecutor is a member of the justice system charged with the responsibility of prosecution in his or her jurisdiction (Elliott & Quinn, 2000). Prosecutors are required to exercise sound judgment in their official capacities. This means that they have to consider the context of a case before deciding to prosecute it or not. A prosecutor’s duty goes beyond convicting the accused. He or she has to ensure that justice prevails. The decision process on the cases to take or not is informed by the traditional professional conduct, the law and ethical codes. Strict adherence to the aforementioned sources of direction on prosecutor conduct and advisory board recommendations guides the decision on the cases to prosecute. This paper will focus on conduct of officers of the court. More specifically, the paper will cover the expected conduct of the police, prosecutors and judges.
The first criteria for selecting a case to pursue is the based on whether there is conflict of interest or not in the execution of the duties (Molan, 2004). Any instance that would affect his partial approach to the case or give him undue information on a case is grounds for conflict of interest (Herring, 2007). In the event a prosecutor was involved in a process before being employed by the government as a private practitioner or in any other non-governmental capacity, he or she ought to be excused from the case unless there is an n explicit law that permits representation.
If a prosecutor is participating in a matter substantially, he should not negotiate with the attorney of the defendant or the defendant. In the event that there were previous negotiations between the prosecutor and either of the parties to defense, the prosecutor ought to avoid future pursue of the cases. In the event that a prosecutor has a stake in the outcome of a case politically, financially or socially, he or she should not take the case (Elliott & Quinn, 2000). If the defendant is represented by a relative of the prosecutor, there will be conflict of interest and the impartiality of the prosecutor will be questionable (Jefferson, 2007). The prosecutor should not take up a case where the defendant is represented by a lawyer with whom he or she has substantial personal or financial relationship since in so doing he or she will be having conflict of interests (Emanuel, 2010).
Illegally obtained evidence is any evidence that is obtained through gross violations of the human rights as posited by the European Convention of Human rights (Molan, 2004). Illegality can be assessed according to the means that the investigating authorities use to obtain the evidence. Illegality of the evidence could arise from the violation of the privacy of the defendant such as forced entry into the defendant’s premises or unauthorized body search in contradiction of the 8 ECHR. Illegality could also arise from the violation of 3 ECHR through torture, depredatory treatment or punishment (Herring, 2007). Any evidence obtained through the aforementioned means is illegal. The prosecution has the burden of proof that the defendant is guilty of the crimes. In some cases, the prosecution resorts to illegal ways of obtaining evidence to support their arguments. The prosecution often resorts to illegal evidence collection measures whenever the conventional evidence collection measures are unfruitful. The judge has to decide on the admissibility of the evidence.
The judge has to consider the motive behind the illegal evidence collection whenever he or she decides to accept the evidence or not. Majority of the courts adopt an inclusionary approach whereby they put the interests of the victim before the legality question. Inclusion approach to illegal evidence also ensures that the victims have had a fair trial. In some cases, the utilitarian approach is applied (Jefferson, 2007). The end is paramount and the means of reaching the end are less significant as long as the illegal means or approaches were adopted in the interest of justice for the victims (Emanuel, 2010). The admission of the evidence is decided upon according to the motives of the illegal evidence collection action.
The judge has to look at the motive of the investigation authority when searching for the evidence. In inclusionary decision regarding illegally collected evidence, the interest of the victim prevails above the right of the accused to privacy. However, inclusionary approach is rarely used in the criminal law in the United States. The law of the United States of America is hinged on the promotion of constitutionalism (Elliott & Quinn, 2000). Most of the illegally obtained evidence is therefore excluded from the court proceedings even if it leads to the conviction of the accused. However, real evidence obtained covertly is permitted in the trial.
Police officer handles arguably one of the toughest jobs in the country. They are often under pressure to perform while the bear all the risks of nonperformance (Emanuel, 2010). Their decision often border on life and death (Molan, 2004). There are higher standard of professional conduct on the law enforcement officers than any other profession. However, the police officers are entitled to due process just like other people. All considerations ought to be made before deciding a case involving the law enforcement.
Elliott, C., & Quinn, F. (2000). Criminal law. Harlow: Longman.
Emanuel, S. (2010). Criminal law. New York, NY: Aspen Publishers.
Herring, J. (2007). Criminal law. Basingstoke [England]: Palgrave Macmillan.
Jefferson, M. (2007). Criminal law. Harlow: Pearson Longman.
Molan, M. (2004). Criminal law. London: Old Bailey.
CCP Management, Inc entered into a property management with Andrew Hoganmuller and related companies. However, CCP Management Inc. was not paid as Hoganmuller argued that the principal object of the agreement was the performance of acts for which real estate broker and property management licenses were required. At the time, CCP Management Inc. Did not possess a real estate broker license as required. However, because CCP management did not have an operating license to do service that it did and had promised to do towards Hoganmuller. The contract was illegal. Its formation was contentious and, therefore, technically it is a no contract. Illegal contracts under the law are void and, therefore, neither party can enforce such act.
Therefore, under the law Hoganmuller are not obligated to pay CCP management because they have an illegal contract that is void. The Doctrine of Severability or separability often states that when a part of the statute is declared unconstitutional, then the unconstitutional part is to be removed and remaining valid portion to continue to be valid. The idea is too often retain the Act or legislation in force by discarding/deleting only void portion and, therefore, retaining the rest. In this case, the Doctrine of Severability does not apply, in this case (Carter & Fellas, 2010). This is because, unlike contracts that entered into by people who lack legal capacity to enter contracts, which are merely voidable by those people, the illegal contracts are clearly void. Therefore, neither party can be able to enforce the contract, nor consequently the law of Severability does not apply, in this case.
According to the law, running a business that needs a permit without a permit is illegal. Therefore, CPP management was being illegal when it was operating, and it did not have a license to do so. Therefore, there is no way that CCP management could have been paid by Hoganmuller having run an illegal business.
Carter, J. H., & Fellas, J. (2010). International commercial arbitration in New York. New York: Oxford University Press.
Harder, C. J. (2011). Entertainment litigation. New York: Oxford University Press.
Stephens, O. H., & Scheb, J. M. (2008). American constitutional law volume I: Sources of power and restraint. Belmont, CA: Thomson/Wadsworth.
This paper examines the rules that govern cases of neglect. Though a lot of proof is required to sustain a negligence case, it still happens to be one of the most cited cases in the health profession. The arguments in this article are based on an excerpt where the plaintiffs sued medical practitioners for conducting an AI process that resulted in a defective child.
Keywords: breach of warranty, strict liability, negligence.
In proving negligence, the plaintiffs will have to offer proof of the following critical components that form the basis of such cases. These are duty, breach of duty, cause in fact, proximate cause, and damages (Owen, 2007).
No, the degree of responsibility is usually higher for people who profess to a certain skill. For example, medical professionals profess to the profession of providing medical expertise. They do this because they have been taught in the ways medicine. It is, therefore, their duty to put this skill to use as prescribed by the Hippocratic Oath and the law (Owen, 2007).
On the claims that the doctor gave them a defective sperm. A warranty can either be implied or expressed. Susan and Tom did not expressly say they didn't want a baby with defects, but it's implied that this is a foregone requirement when couples opt for AI services (Breach of Warranty Law and Legal Definition, 2016).
The threshold question would be to ascertain if there were viable means that could have been used by the doctor to identify defective sperms. If there were such ways and it is proved that the physician ignored using such means for detecting these defects then the threshold of negligence can be argued to have met. Provision of sperm can be looked at as the provision of a service (Breach of Warranty Law and Legal Definition, 2016).
In tort law, it is sufficient to prove two aspects, 1) that damages have been incurred by the plaintiff and 2) liability. It might be relatively easy to prove the former because this can be a visual process. To show that the sperm bank is liable for their misfortune, a procurement of service agreement between the sperm bank and the plaintiffs (Negligence: Background, 2017).
In arguments involving issues where there is probable cause to believe that more forces are involved than the ones governed by the law of science. Causal arguments aim to prove that there is one conclusion about regularity, i.e., the regularity of cause – and – effect relationships (Moore & Parker, 2007).
If sued for negligence the sperm bank and the doctor can argue on the basis of Design and Causation whereby they can reiterate that they cannot be held wholly responsible for the defects that the baby was born with (Moore & Parker, 2007). Biologically, when a baby develops inside the mother's womb, it acquires DNA material of both parents. Knowing which parent was responsible for the defect may not be feasible more so if the mother was not tested before the AI process (Breach of Warranty Law and Legal Definition, 2016). Strict liability is more often cited in product cases. However, the defendants can claim that the plaintiff was aware of the dangers involved in such processes and that these were beyond their scope of influence (Proving Fault in a Product Liability Case, 2017).
Breach of Warranty Law and Legal Definition. (2016). Retrieved September 4, 2017, from U.S. Legal: https://definitions.uslegal.com/b/breach-of-warranty/
Moore, B. N., & Parker, R. (2007). Critical Thinking (8 ed.). New York: McGraw-Hill.
Negligence: Background. (2017). (Thomson Reuters) Retrieved September 4, 2017, from FindLaw: http://injury.findlaw.com/accident-injury-law/negligence-background.html
Owen, D. G. (2007). The Five Elements of Negligence. Hofstra Law Review, 35(4), 1671-1685.
Proving Fault in a Product Liability Case. (2017). Retrieved September 4, 2017, from FindLaw: http://injury.findlaw.com/product-liability/proving-fault-in-a-product-l...
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