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PhilCave
PhilCave, Lawyer
Category: Military Law
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Experience:  33 years military law experience.
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Is a U.S. Marines hands, feet, knees, legs, and/or any other

Customer Question

Is a U.S. Marine's hands, feet, knees, legs, and/or any other body part, used to harm a civilian whom posses no threat what-so-ever to the military official, and did not attack the Marine in any way shape or form, considered a deadly weapon? Is the Marine's, specifically the hands, considered a deadly weapon, under the above circumstances?

Concurrently, if the injury sustained from the attack is minimal, for example a sprained neck, does that have bearing on the charge given out by the prosecutor or officer. I need court case precedent to validate the answer, specifically in Michigan, but not limited to Michigan. Thank you!
Submitted: 4 years ago.
Category: Military Law
Expert:  Allen M., Esq. replied 4 years ago.
No. Generally speaking, there are only a few states that have ever even tried considering hands and feet (specifically of professional boxers) as deadly weapons.

The most recent state that even attempted this, that I can find, was Florida, whose Supreme Court struck it down as unconstitutional...as every assault could then be classified as an assault with a deadly weapon.

Michigan has no case law or statutory law concerning hands as deadly weapons and there certainly is not one specifically stating that all Marines would be considered deadly weapons as such a law would certainly be unconstitutional.

If anything, it would have to be a case by case showing that this particular soldier had a certain amount of training in hand to hand combat (and general soldiers do not get that much training in it) such that this one person should have their hands considered deadly weapons.

The argument is severely hindered by your statement that not much damage would ber cause (in your example a sprained neck.) If some serious injury had occurred, it would be a much more viable argument.

Edited by jagcorps_esq on 9/24/2009 at 3:01 AM EST
Customer: replied 4 years ago.

Dear Jagcorps, Esq,

 

SECTION I: Evaluation of the Outcome

I am going to have to disagree with you. My brother is in the Marine Corps so I am not biased toward disliking Marines and my dad was a Drill Sgt. and is a retired Master Sgt. from the Army, so I am actually biased toward favoring honorable military personnel.

 

SECTION II: Explanation of Disagreement

I am, however, disgusted by the fact that a Marine would harm an innocent non-threatening civilian, when it is their duty to protect all civilians of the United States of America. There is a code of conduct by which to adhere and abide. This particular Marine violated the oath he took. It is utterly despicable that any Marine or any military official would conduct himself in such a manner. That being said, I am, despite the way this particular Marine conducted himself, very grateful for our brave and honorable Marines abroad. I am extremely appreciative for their services, of which makes me very proud of my brother, father, and the entire U.S. Military.

 

SECTION III: Disciplinary Actions to be Enforced

It appears to me that you are biased toward favoring military personnel as well, and I would be too if I were you. Do you agree that, that particular marine is not only unethical but should be punished by his commanding officer? Will he be punished by his commanding officer? What type of punishment will occur? Will he go to Military court for this assault on an innocent non-threatening civilian (whom he should be protecting non-the-less)?

 

SECTION IV: Rebuttals

Respectfully XXXXX XXXXX my question was not answered. You stated, quote; "No, generally speaking there are only a few states that have tried considering hands and feet (specifically professional boxers) as deadly weapons." - [I asked about Marines, this one trained in Martial arts as he knew the kick moves and choke moves to snap someone's neck, my neck]


Quote cont; "The most recent state that even attempted this, that I can find, was Florida. Whose Supreme court struck it down as unconstitutional, as every assault could then be classified as an assault with a deadly weapon. - [What were the circumstances in this particular case? Was the defendant a Marine? A Boxer? A Civilian? Need more information to determine if this is even a relevant case to consider as precedent.]

 

Quote cont; "Michigan has no case law or statutory law considering hands as deadly weapons [again, respectfully, XXXXX XXXXX the question, I didn't ask about law, I asked about precedent anywhere in the United States where a Marine who assaulted an innocent non-threatening civilian could have his hands, feet, and/or any other body part considered as the deadly weapon, not hands of just any schmuck, hands of a trained killing machine (which is what a Marine is), with experience in martial arts. I see you are not a Marine, you are an Enlisted Army JAG. All Marines receive martial arts training, I know, my brother is a Marine, as I stated before]

 

Quote cont; "and there certainly is not one specifically stating that all Marines would be considered deadly weapons as such a law would certainly be unconstitutional"

 

With all due respect Sir, that statement is so irrelevant, I don't know why you even included it. It simply makes no sense. Why would any congressman even considered thinking of drafting a law like that? Draft a law to compromise our Countries heroes. Absolutely ludicrous.

 

SECTION V: The Issue at Hand

The issue at hand is a non-threatening, unarmed, submissive, and non confrontational civilian who did not provoke, not-to-mention even try to attack, a Marine trained and skilled in fighting tactics and martial arts used to kill in the time of war during battle. If you don't consider the hands of a Marine, trained to use his hands and/or any other body part for that matter, to kill enemies, then I don't know what you considered a weapon. I certainly think those hands are more of a deadly weapon than a knife, brass knuckles, bats, cro-bars, etc., that would be used by a civilian or anyone for that matter.

 

SECTION VI: Conclusion and Requests

Please research court rulings and court case verdicts that deal with a Marine, or any similar trained killing machine, to find out if anything has ever been ruled in a similar way as I described in the 'issue at hand' section. Please address each section with an explanation and feedback. I am more concerned with court precedent at any level, whether it being on a Civil, all the way to a Supreme Court, case.

 

I appreciate your time and effort in researching this matter. I thank you in advance for your service and I admire your position as an enlisted member of the Army JAG. I commend you for your services to our great country, you are a brave individual.

 

Warmest Regards,

 

XXXXX XXXXX

 

 

 

 

 

 

 

 

Expert:  Allen M., Esq. replied 4 years ago.
I see that we are not going to be able to work with each other, as I am bound to only discuss law.

I have no bias, save what law says and what it can show.

As for whether my statements are irrelevant or not...I'm sure that you are right, though I am but a humble lawyer.

I wish you well in your quest (for whatever it is you are seeking), but my part in it ends now.







Customer: replied 4 years ago.

Dear jagcorps, esq,

 

I thought was pretty clear with my "quest (for whatever it is...)" I am "(...seeking)", in SECTION VI: Conclusion and Requests. I appreciate your time, but if it is the time for your research that is the problem just let me know. At least provide me with your discussion and explanation of opinion and feedback for each SECTION. Thats all I ask, I will seek alternative council for precedent research if that is what you prefer. You said you are bound to only discuss law, thats exactly what I would like you to do. Thank you in advance!

 

I am eager to read your discussion over my SECTIONS. I appreciate your time.

 

Warm Regards,

 

XXXXX XXXXX

Expert:  Allen M., Esq. replied 4 years ago.
I've decide to opt back in and address this further, because it's been bothering me.

Section I: This is irrelevant to the issue. I'm glad you respect soldiers.

Section II: This is equally irrelevant. I, too, am disguested by the actions of any soldier that do not comply with the law or the honor code of the military, but that doesn't change the law. Your disagreement here is a moral one and not a legal one.

Section III: Such a soldier should be punished by his commanding officer and/or the local police for assault. Neither you or I are in charge of that decision though. It is the choice of the prosecutor and the commanding officer.

I understand that you have asked about Marines....there is nothing there. Nothing. The closest that anyone has come is to discuss professional boxers, which is why I even mentioned them.

Section IV: The statement concerning the unconsitutionality of stating that all soldiers (including Marines) can not be classified as deadly weapons for purposes of heightened punishment under state laws is certainly not irrelevant. At least, the Supreme Court in Florida that discussed the issue did not feel that it was irrelevant and as I lawyer, I tend to defer to judges on these issue. The point is that if the Legislature can't do it, neither can a court...as they are equally bound by the Consitution.

As for your opinion of Marines, I have served with Marines. I was not always an Army JAG. I've competed against Marines in Hand to Hand combat competitions (called Combatives) and they're nothing special.

Section V: More of your opinion which comes to nothing in a court of law. Listen, the fact that this was a soldier can certainly be an extenuating factor in determining the level of punishment, but just because you think that a Marine's hand are more deadly than knives that doesn't mean the court is going to follow you down that road.

Section VI: No, I will conduct no further research. I have researched the issue. Michigan has no case law or statutory law allowing what you suggest. The only law outside of the state is unfavorable to your cause (having turned down the opportunity to enact this sort of thing).

Good day.


Edited by jagcorps_esq on 9/25/2009 at 5:35 PM EST
Customer: replied 4 years ago.

I've decided to reply once more, your tone has been bothering me.

 

I address your answers with 'Dear Jagcorps, esq.', while you show no respect of any salutation what-so-ever. Do you feel superior to clients of JustAnswer because you are a "humble lawyer?"

 

Well, humble lawyer, if you are even a lawyer, it would seem to me that a lawyer could produce a response free of grammatical and/or spelling errors. I will address each of your addressed responses to my SECTIONS.

 

SECTION I: Be it as it may, the relevance of this section was not to address the issue, it was simply a section titled Evaluation of Outcome. Nothing to do with the issue. I am, too, glad that you are glad that I respect HONORABLE soldiers, like yourself, I'm sure.

 

SECTION II: I agree with you, this is a moral issue. However, It has bearing on the outcome of a judges decision, and you know that.

 

SECTION III: If it is up to the decision of the prosecutor, than I believe I will prevail. However, the Police Officer whom issued the ticket had insufficient evidence to charge the defendant with the proper offense. I was assaulted with what I believe is a deadly weapon (the marine's hands), and the officer had no injury report. I now have one, and will provide it as evidence to the prosecutor.

 

Any Commanding Officer that is aware of such a case and does not take disciplinary action should be dishonorably discharged from the U.S. Military, this is absolutely the worst conduct of any American Soldier I have ever seen. It makes me sick and want to puke my guts out.

 

SECTION IV: This IS irrelevant. No law would even be considered by legislature, are you a little slow in the head? No politician would even think about enacting such a ridiculous law. Interpretation of the law is subjective to professional opinion. One could argue that the hands of a trained killing machine is a deadly weapon. How often do you represent clients in trial court cases? I am going to guess not very often.

 

Still you have not provided the details of the FL Supreme Court Ruling. You stated, quote; "The statement concerning the unconsitutionality of stating that all soldiers (including Marines) can not be classified as deadly weapons for purposes of heightened punishment under state laws is certainly not irrelevant. At least, the Supreme Court in Florida that discussed the issue did not feel that it was irrelevant and as I lawyer, I tend to defer to judges on these issue."

 

First of all, you spelled 'unconstitutionality ' wrong, you spelled it; "unconsitutionality" notice the extra 'i' between the 's' and the 't' of "unconstutionality." Furthermore, the second to last line that says "and as I lawyer..." , is a grammatical error, impressive for a lawyer, didn't you have to go to law school? Did you not learn how to edit your reports?

 

SECTION V: THIS IS NOT OPINION, this is FACT. I absolutely despise the notion that you could even consider saying what I believe happened to me is opinion. A skilled lawyer would easily be able to convince a jury of equal peers that what happened was more than simple assault. You should have your bar license revoked. You make me gag when I think of your logic. I am a graduate of the University of Michigan. I am an educated individual, if you couldn't tell by the way I write. I have two degrees in accounting and finance, and an MBA. I am currently enrolled in law school at Harvard, also. You are a poor example of a lawyer. I would never retain you as a lawyer, you provide no help, you are inept. You make me sick. I will be one hundred times better of a lawyer than you.

 

SECTION VI: I don't care about Michigan, like I said before. I care about the entire United States of America, do your job and research the case before acting like you know what your talking about. I guarantee I will retain a lawyer that can represent my case in the correct manner, something you are incapable of comprehending. It is sad that a so called lawyer, like yourself, is incapable of interpreting law in a way to benefit a client. You must be mentally handicap. I feel sorry that you are too lazy to conduct further research, you are pathetic, and I will file a grievance against your expertise. You are not an expert, you are but a fraud. I was born at night, but not last night buddy.

 

Good Day. Faggot.

 

I give you no Salutation, you egotistical idiot.

 

 

 

 

Expert:  Allen M., Esq. replied 4 years ago.
Dear Sir:

I have asked that this question be closed.

I thank you, XXXXX XXXXX for no further communication.

I, however, stand by answer. I agree that what happened to you was terrible. An attorney can make something of that in a civil tort claim perhaps, but not in a criminal court. You can't just make arguments that have emotional validity but no legal backing....no matter how much you believe in them. Sure, you might convince the jury for the split second prior to a mistrial being called, since you will have violated every pretrial brief and motion in limine limiting the law to be used during the trial.



Edited by jagcorps_esq on 9/26/2009 at 4:22 AM EST
Expert:  PhilCave replied 4 years ago.
Mr. Cooper,

I have redefined your question and looked at it according to military law under the Uniform Code of Military Justice (which your Marine is subject to, even though the assault apparently happened off-base), and Michigan.

Rather than consider if the persons hands, feet, and special training are a deadly weapon (which they are not), I ask the question are they "a means likely" to cause death or grevious bodily harm. I ask that because that is an alternative assault charge under Article 128, UCMJ. The assault would have to be prosecuted under:

ART. 128(b)(1) "commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or (2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon. . .

It's not a 128(b)(2) because apparently there was no serious injury.

I have researched, using one of the databases regularly used by lawyers to research the law and case law, going back to 1958, when military cases where first put into the database. I can find no case in which there was a prosecution under Article 128(b)(1), UMCJ, where hands and feet and training were the "dangerous weapon" or "other means likely." I did not look, but I'm pretty certain that there are cases prosecuted under Art. 128(b)(2), UCMJ (partly because I've prosecuted or defended them) where someone was beaten so severely by hands and feet that there was a serious injury. But that's not relevant to your question.

So, my professional opinion is that an Article 128(b), UCMJ, prosecution would not succeed, where hands, feet, and training, were the "weapon" unless serious harm was caused. That is because the hands, feet, and specialized training would not be a dangerous weapon. This is different than taking a beer bottle or baseball bat and then using them in a "means likely" manner.

So, I would see the Marines being prosecuted at court-martial for assault and battery, breach of the peace, and those types of offenses. The circumstances surrounding the offenses would be considered "aggravating evidence" under Rule for Courts-Martial 1001.

So, what about Michigan, could there be a "means likely" or "causing" prosecution where a person was injured, but not seriously, by an assault using hands, feet, and specialized training?

Here I find a search of general state law consistent with my analysis above under the UCMJ. Hands and feet are not considered dangerous weapons in themselves. Rather it is the way in which they are used and the resultant injury. They are however considered a "means likely" to cause death or grevious bodily harm where serious harm results. Oddly, none of these cases are from Michigan (or Virginia where I am licenced).

Also, under my analysis I think the degree of injury question is also answered. No serious injury means no serious charge. Serious injury results in the more serious charge.

Here is the Michigan definition of dangerous weapon -- as best I can tell.

750.226 Firearm or dangerous weapon; carrying with unlawful intent.

 

Sec. 226.

Carrying firearm or dangerous weapon with unlawful intent—Any person who, with intent to use the same unlawfully against the person of another, goes armed with a pistol or other firearm or dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length, or any other dangerous or deadly weapon or instrument, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years or by a fine of not more than 2,500 dollars.

 

Here is another definition in Michigan statutes.

 

(b) “Dangerous weapon” means 1 or more of the following:

(i) A loaded or unloaded firearm, whether operable or inoperable.

(ii) A knife, stabbing instrument, brass knuckles, blackjack, club, or other object specifically designed or customarily carried or possessed for use as a weapon.

(iii) An object that is likely to cause death or bodily injury when used as a weapon and that is used as a weapon or carried or possessed for use as a weapon.

(iv) An object or device that is used or fashioned in a manner to lead a person to believe the object or device is an object or device described in subparagraphs (i) to (iii).

 

I think we are still back with a similarity to the UCMJ. An instrument implies a physical object rather than body parts.

 

A lengthy answer, but I think by redefining the question you are where you need to be in terms of what crime was or was not committed and how it might be dealt with.

 

Please note I am not a Michigan lawyer (VA, OH, DC). If you are seeking to begin a lawsuit or a criminal complaint you should get the advice of the local police and a Michigan attorney.

 

Sincerely.





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