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Criminal Liability and the Use of Force

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AL LIABILITY AND THE USE OF FORCE

Margaret Barnes
LEG-320 Criminal Law
Professor Muhammad
Strayer University
Date: 01 February, 2013

Criminal liability and Use of Force

1. The crime of solicitation takes place when a person invites, commands, requests, and hires or urges another person to commit a specific offense (LexisNexis, n.d.). For a solicitation to take place, the offense does not have to be consummated. This means to say that solicitation of crime is complete after it has been communicated to another. In certain states even as a joke or a hoax can constitute a crime of solicitation because the authorities cannot know when a person may only be joking; others may also use jokes to hide their true intent (Gardner & Anderson, 2011). An example of solicitation is a pimp asking a girl to commit prostitution. The pimp is considered to have committed a crime because prostitution is illegal. The girl though cannot be considered to have committed the crime unless she would actually offer sexual services to another person in exchange for money. Another example is an employee who agrees in an employment contract not to solicit business from a company’s customers after the contract has terminated but sends a letter of solicitation to company customers once his or her employment contract ends. The letter constitutes a solicitation and is considered illegal. However, in order to prove that a defendant is guilty of solicitation, there has to be corroboration from at least one witness and one corroborating evidence (Justia, 2013). The person who receives the solicitation letter can serve as witness. In certain states, corroboration requirements are testimony of at least two witnesses or by the testimony of one witness and corroborating evidence (Justia, 2013).

2. The essence of conspiracy is an agreement by two or more persons to commit some form of prohibited misconduct, crime, or fraud (Doyle, 2010). The crime is considered complete upon agreement although there are certain statutes requiring evidence that at least one co-conspirator has undertaken an act to further the conspiracy. Meaning, there should be one among the group that has actually done his or her part to complete the conspiracy. Thus, the existence of an overt act is important for evidentiary and procedural reasons although the overt act need not be the object of the conspiracy (Doyle, 2010). Nevertheless, there are some conspiracies that are too dangerous that the overt act requirement is not observed. An example of this is conspiracy to defraud the United States through a false claim (Doyle, 2010).

3. The rules governing a police officer’s use of force begins with the Fourth Amendment to the United States Constitution. The successful use of force constitutes a seizure within the meaning of the Fourth Amendment and thus, must be reasonable. Prior to this, police authorities were noted to often cross the line and violate the rights of individuals. There was nothing to prevent them to abuse their authorities.
To note, the Fourth Amendment provides for the:

“right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized” (Robles, 2008, p. 3).

In light of these, the use of force must be reasonable such that it depends not only when it is undertaken but also on how it is carried out. Therefore, to determine whether a police officer’s intentional use of force is permissible under the Fourth Amendment, there is typically an objective reasonableness inquiry. This reasonableness approach is used rather than the substantive due process because what is being inquired about pertains to whether an officer’s actions are objectively reasonable by virtue of the facts and circumstances they are confronted with at the time they use force. Thus, their underlying motive or intention is not probed upon in determining reasonableness.

4. It has been said time and again that an individual’s home is his or her castle and the law identifies how much force a person may use to protect that castle. The Castle Doctrine, also known as the Make My Day Law, permits citizens in their homes and in certain states, cars or workplaces the right to protect themselves, their property and others by force. In certain states, even lethal use of force is permitted against individuals that may attempt to invade or trespass. However, it must be noted that what may be regarded as self-defense in certain states may constitute as murder or manslaughter in others (Purves, 2013). The circumstances will determine the case.
States that practice strong Castle Doctrine do not require attempts to retreat first before using force. For instance, the lethal use of force without attempts to retreat is permitted by statute in Texas in the event that an intruder has unlawfully entered or is attempting to enter through the use of force (Purves, 2013). The state of Florida also permits this, and the “castle” can be as temporary as a tent so long as the person has ownership. Other states with strong Make My Day statutes are “Alabama, Arizona, Georgia, Indiana, Kentucky, Louisiana, Montana, Nevada, Oklahoma, South Carolina, Tennessee, Utah, and Washington” (Purves, 2013). California has softer Make Me Day law wherein the use of lethal force may be used but not in the case of theft and only in cases when a homeowner or others in the “castle” are in physical danger (Purves, 2013). New York also has a soft Castle Doctrine and attempts to retreat must first be undertaken.

References

Doyle, C. (2010). Federal conspiracy law: A brief overview. Congressional Research Service. Retrieved on January 26, 2013 from http://www.fas.org/sgp/crs/misc/R41223.pdf
Gardner, T.J. & Anderson, T.M. (2011). Criminal law. Independence: Cengage Learning.
Justia. (2013). Solicitation: Elements. Retrieved on January 26, 2013 from http://www.justia.com/criminal/docs/calcrim/400/441.html LexisNexis. (n.d.). Solicitation. Retrieved on January 26, 2013 from http://www.lexisnexis.com/lawschool/study/outlines/html/crim/crim21.htm Purves, B. (2013). Castle doctrine from state to state. Retrieved on January 26, 2013 from http://source.southuniversity.edu/castle-doctrine-from-state-to-state-46514.aspx Robles, L. (2008). The Fourth Amendment use of force model. Retrieved on January 26, 2013
From http://www.iowacounties.org/News/Topics%20of%20Interest/IMLADocuments-
08/Robles- Fourth%20Amendment%20Use%20of%20Force%20Model %20%28IMLA%20Version%29.pdf

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