[Barbarossa]

Have any of you ever been charged or attempted to have been charged with assault or worse while defending yourselves or your home? When does one stop? Is it ethical to lie when you know that telling the truth about how you disabled the perp could land you behind bars?

I would like to hear how your country treats those who kill or severly injure attackers.

[hillbilly]

Barbarossa, here's the best answer I can give.

I teach Concealed Carry for the state of Arkansas.

My state law says that either an attorney or a police officer has to teach the "Self Defense and the Law" portion of that course.

I have hired several different attorneys and police officers to teach that to my CCW students.

The attorneys and the police all agree on a few things.

There is what the law says.

And then there are the almost infinite factors and circumstances and situations unique and specific to each encounter.

And after you factor in all the specifics and circumstance and situations you can, it also depends on which district attorney you get, and if he decides or doesn't decide to charge you. And it depends on the judge you get, and the jury you get, should it go that far.

Basically, there is no good answer to your question, because you are asking a theoretical question, and not a question about an actual situation with actual documented facts.

One more thing the attorneys and police all agree on.

I don't know about South Africa's laws, but in the United States, you have the right to remain silent.

Attorneys and police all agree that should you shut up and not give any statements to anyone until you have consulted with an attorney first.

Shutting up until you have consulted with your attorney is a great way to avoid any situation wherein you lie on purpose, or tell half-truths becuase of the adrenaline surging through your system.

hillbilly

[hillbilly]

Just a bit more about Arkansas state laws (and all fifty states in the US have their own laws on this subject) and deadly force.

I am not an attorney, and this is not to be considered legal advice of any sort.

Basically, in Arkansas, you can use deadly physical force (any force that can be reasonably expected to inflict serious damage or death) to save life, limbs, and eyesight.

If you are in public, and you can retreat from a situation with complete safety, you have an obligation to retreat. If you cannot retreat in complete safety, you may legally used deadly physical force.

In your house, once the bad guys break or even attempt to break in, you can use deadly physical force to defend yourself as you have no duty at all to retreat from you own home.

Whether the bad guy is armed or not makes no difference under Arkansas law. What matters is was the intended victim in reasonable fear for his or her life, limbs, or eyesight?

You can use deadly physical force in Arkansas to prevent arson of a structure that is inhabitable by people.

You may not use deadly physical force in Arkansas to save property. If someone is stealing your car from the driveway, and you look outside and see them doing it, you may not use deadly physical force to stop them.

Again, if someone breaks into your house while you are home, you do not have to stop and ask them if they are bent on rape and murder, or stealing your television set. Breaking into the house runs the stakes up high enough in Arkansas that deadly physical force is legally justified.

hillbilly

[Barbarossa]

That proved to be some very interesting reading. Thank you for taking the time to reply.

[Baba Louie]

To answer your questions (tho I am not a lawyer, my BIL is)
When your attorney cannot cannot convince the DA you clearly did the following:

Did nothing to cause or incite the act of violence or use of force.
Tried to retreat until you could not.
Self Defense is one of those defense situations when you have to take the positive and admit you acted using lethal force because of the two items above plus you must show the BG had the "Ability" to use lethal force against you, he had the "Opportunity" to do same and he in fact placed you in "Jeopardy" with/by his actions. These must be truthful... not lies.

You, by your own actions and words, admit to Homicide, Justifiable. Let nothing alter the truthfulness of the desparate situation you found yourself in by tweaking evidence or embellishing the facts. It is a very thin, very fine line between justifiable homicide and manslaughter.

Note the comment about your attorney convincing the DA. Let your attorney do the talking. Don't scrimp on your attorney selection.

The above actions "A, O & J" on the part of the BG might be hard to prove if there are no witnesses on your behalf and the BG's friends testify with lies. Here the police even tell you that anything you say can and will be used against you. They mean it.

It also seems that the political mood of the DA might well be used against you should you live in certain locations.

When does one stop? When the use of lethal force being used against you is over. Do not chase BG's from scene of their violent act.
Lots of threads about shooting to Stop vs shooting to Kill or shooting to Live vs shooting to kill.
I would like to hear how your country treats those who kill or severly injure attackers. It varies. Lawsuits from BG's family for wrongful death might follow, even if you've been given a clean review on criminal charges. (Look at the OJ Simpson case as an example... not a good example of self defense as the victims were the innocent parties, but a good example of a Civil wrongful death lawsuit being brought to bear for good cause after criminal action acquittal).

Finally to answer your first quesion, I have not had to use force against another human. (I Thank God)

[Hawkmoon]

I am not a lawyer, either, but have been very interested in this subject. As noted, the laws differ in each state. Outdoors, I believe all 50 states agree on imposing a "duty to retreat." Arkansas may be somewhat unique in allowing the use of deadly force to protect limbs and eyesight. Most states allow the use of deadly force only when in fear for your life.

In some states, the duty to retreat extends even inside the home. In other words, if a bad guy breaks in the front door but you can safely retreat to an upstairs bedroom and the bad guy stays downstairs, you can't use deadly force. On the other hand, it has been reported that Texas is unique in allowing the use of deadly force to protect property after dark.

Unfortunately, the direct answer to your original question is that it depends too much on the discretion of the prosecutor. Fire up Google and search for "Pring-Wilson." This is the student at Harvard who is being tried for murder in the killing of a male who insulted him as he staggered along a sidewalk in a drunken stupor. The over-zealous prosecutor is trying to convict for first degree murder (first degree requires premeditation), on the theory that "intent can be formulated in an instant." This strikes me as overreaching to an extreme degree. I don't know enough about the case to have a valid opinion as to whether the student initiated the fight or is otherwise at fault, but it seems plain enough that he didn't set out from the party he was attending with the thought "I think I'll find someone on the way home and kill him." Ergo, it should be obvious to a rational person that there was no premeditation, but prosecutors these days don't seem to use logic. They use the "everything but the kitchen sink" approach in the hope that if they throw enough terrible sounding charges at someone, a few of them will stick.

Unfortunately, judges are too compliant and aren't tossing these bogus charges. IMHO it's not so much that the laws are bad or wrong, as that the people who use the laws are abusing them.

[jnojr]

I believe all 50 states agree on imposing a "duty to retreat."

There are states that do not have a "duty to retreat". Sorry, can't think of which ones... someone'll say :)

Arkansas may be somewhat unique in allowing the use of deadly force to protect limbs and eyesight. Most states allow the use of deadly force only when in fear for your life.

Huh??? If someone walks up to you and says "I'm going to blind you" or "I'm going to cut your arm off", no state is going to say "Sorry... he didn't say he was going to kill you, so you couldn't shoot". You'll be as justified (or not) for shooting your assailant according to local mores, politics, etc.

[John Hicks]

I took the VA CC class at the NRA building and it agrees with the Arkansas law to a Tee.

Our instructors were cops and lawyers.

They did not mention retreat, though. Just, if you feel you are in danger for your life, you may take action. Period. The law is very black and white: if you brandish and aim, you'd better be justified in shooting. In other words, only skin the smoke-wagon if you are justified in using it.

Now of course, the gray area is how a DA will look at it. If you are being chased, pull your gun to defend and the guy craps himself and runs away, I doubt you'll be prosecuted. However, if a guy just starts talking mean to you and you pull a gun, then you are in trouble.

No property defense in VA. Just life (although I'm sure you can justify defending your eyes and limbs, since major damage to them could cause loss of life). Also, someone in your home uninvited carries the assumption of mal-intent. You don't need to see a weapon or wait until you are cornered.

An interesting side note from a police friend of mine: use a plain gun for self defense and carry. No laser sights, extended mags, hand carved grips, bayonette :). If the shooting turns out to be questionable, having a customized gun can sometimes be construed as you being a "gun nut" or "looking for a fight". Regardless of the actual truth. The cops usually don't buy into this, but DA's sometimes do.

Just food for thought. I have not used my firearms to destory anything but paper and clay -- and hope to keep it that way.

jh

[Graystar]

Here is a link to New York State's law on justified defense:

http://assembly.state.ny.us/leg/?cl=82&a=12

New York also has a retreat clause, but it almost never applies. The law says that you must retreat only if you can do so with complete safety. Basically, if you are able to retreat with complete safety, then you probably were never in any real danger. Frankly, other than an intended victim being in a car and driving away from a non-firearm wielding attacker, I can’t even imagine a situation where a person could retreat with complete safety.

And, in fact, of several high-profile self-defense shootings in the city, all were found to be justified.

But to answer your initial question...self-defense NEVER becomes assault or manslaughter if it is, in fact, self-defense.

[Ktulu]

In some states, the duty to retreat extends even inside the home. In other words, if a bad guy breaks in the front door but you can safely retreat to an upstairs bedroom and the bad guy stays downstairs, you can't use deadly force. On the other hand, it has been reported that Texas is unique in allowing the use of deadly force to protect property after dark.

Point of information: In Michigan, on the street you have a duty to withdraw (don't like the word retreat) to safety if possible. In your home you have no such duty. You can stand your ground if you wish. In either scenario you can only use deadly force to stop the threat. Try to explain why the bad guy has 12 bullet holes in his back and is laying face down halfway out your front door and you’re going to have a problem.

[Pilgrim]

Sometimes people confuse "duty to retreat" with a requirement that the armed citizen not do anything to make things worse. This means that you as an armed person do not create or foster a situation where your opponent is goaded into attacking you so that you can kill him.

California Penal Code, in the section covering justifiable homicide, states that an attacker can regain the right to self defense provided he makes an honest attempt to break off contact and stop the conflict. If you as an armed citizen fail to recognize that honest attempt by an assailant to break contact and stop the conflict, and you kill him, you can be charged with murder or manslaughter.

The recommendation to remain silent after a shooting is a good one, but absolute silence will probably result in your arrest until the police can sort out the evidence. I instructed my department's officers and other interested persons on what to say when involved in a shooting. To me, and attorneys I have talked to, it is Ok to give the bare essentials of what happened. "I was filling the gas tank of my car when he hit me on the head from behind and said he would kill me if I didn't give him my wallet. I shot him because I thought he would kill me." It has to be the truth. After that, it is Ok to refuse to answer any further questions.

I also instructed my officers and other interested persons that if the investigating officer persists in asking questions, and he is not dissuaded by their insistence to talk to an attorney, say that they are sick and want to see a doctor.

[duckslayer]

In Texas you are allowed to protect property with deadly force, as well as prevent arson or criminal mischief during the night. So although the penal code says you can shoot the neighborhood vandal for spray-painting your garage door at night, I wouldn't recommend it, as the civil suit is likely to see things differently.

Also, if anyone comes in your home there is no duty to retreat in Texas.

[Intune]

Is it ethical to lie when you know that telling the truth about how you disabled the perp could land you behind bars?
Do Not LIE! It will come back to haunt you.

[gbourne]

Ohio has no duty to retreat from your home.

[Tall Man]

Basically, there is no good answer to your question, because you are asking a theoretical question, and not a question about an actual situation with actual documented facts.
That's probably the best reply to your question that will be posted here, Barbarossa.

In the meantime, read this (http://www.amazon.com/exec/obidos/tg/detail/-/0966511913/qid=1097684042/sr=8-1/ref=sr_8_xs_ap_i1_xgl14/102-7196702-3394551?v=glance&s=books&n=507846) book. It expands on the discussion begun by Hillbilly. The author is a practicing attorney.

TM

[Werewolf]

IANAL but as far as I know there is no duty to retreat in Oklahoma when outside. I've done a pretty thorough search of the law and cannot find any reference to a duty to retreat.

The only reference even close is the Make my Day law which decares that a person in OK absolutely has the right to be secure in his home, etc etc

It is my understanding that specific duty to retreat statutes are the exception and not the rule in the 50 states. To the best of my knowledge there are very few states that require retreat outside and 3 or less that require it in the home.

Escalation is a different matter entirely as explained by the lawyer who taught the CCW class I attended. Escalation is the joker the DA can use to prosecute when he otherwise might not be able to. I can't really adequately define escalation because it seemed to me to be one of those really gray areas in the law.

Maybe a lawyer can jump in and define escalation.

[BigG]

Every killing is manslaughter or homicide. If murder, the prosecution must prove mal intent.

[Gray Peterson]

Washington State has no duty to retreat requirement for the use of any force. This was confirmed by a recent Washington State Supreme Court case.

[Cosmoline]

There are some variations between states when it comes to guarding the homestead, esp. at night. In some states you are automatically allowed to assume a nighttime intruder intends to use deadly force. In other states that's still probably going to be a reasonable assumption but there it isn't automatic.

The universal rule is that the amount of force you use must match the amount of force the other uses or the amount of force you reasonably expect the other to use in the immediate future.

Thus if someone comes up with boxing gloves on and says "give me your money or I'll break your nose," you might not be justified in capping him.

And, more realistically, if you have shot your attacker twice and he's either down or running away, you are no longer faced with imminent deadly peril and must cease to use deadly force yourself. This does not mean you cannot use any force, simply that your use of force must decrease along with your foe's use of force.

[Werewolf]

The universal rule is that the amount of force you use must match the amount of force the other uses or the amount of force you reasonably expect the other to use in the immediate future. It is not the universal rule as you state above.

Take for example the law in Oklahoma.

§21-1289.25. Physical or deadly force against intruder.

PHYSICAL OR DEADLY FORCE AGAINST INTRUDER
A. The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes.
B. Any occupant of a dwelling is justified in using any degree of physical force, including but not limited to deadly force, against another person who has made an unlawful entry into that dwelling, and when the occupant has a reasonable belief that such other person might use any physical force, no matter how slight, against any occupant of the dwelling.

Emphasis mine...

It's pretty obvious from the above that in OK at least matching force is not the rule in the home. If someone breaks into your home whether armed or not it is almost a given here that you can shoot him. This has been tested over and over again. It is rare indeed for a home owner to even get arrested though it has happened.

But - the above rule stops at the door leading outside the home. Unlike Texas we cannot in OK use deadly force to protect property. As someone pointed out in this or another thread if someone's in your driveway breaking into your car and you point a gun at him and he thumbs his nose at you - tough - there isn't jack you can do about it - at least not with a gun anyway.

[Cosmoline]

Matching force is the rule everywhere. What you cite is an exception to the rule in OK similar to the exception I cited.

[Graystar]

It is not the universal rule as you state above. Agreed. It’s only universal to liberal gun-grabbers that created this “rule.”

So a 90 lbs woman, being raped by a 250 lbs man with no weapon, *shouldn’t* use a gun to save herself???

This is one of the most ridiculous and dangerous anti-gun ideas ever conceived. There simply is no law, history, custom, or anything else to support this thoughtless concept.

In New York I can shoot someone if he is setting a building on fire. If I were go by this silly "matching force" concept, I'd have to set him on fire instead.

[Cosmoline]

Calm down. There's no gun politics involved in it.

Your hypothetical reveals you do not understand the concept, which would explain your anger. If the woman is faced with deadly force as you posit (or indeed, with rape) she would be allowed to use deadly force in defense. That *is* the general rule of matching force with force. If she's simply being pinned down by a friend who's goofing around, she may be annoyed but she's not allowed to kill him. In my experience small women have many non-lethal but quite painful means of getting the attention of stupid men, and use them freely.

If someone is setting fire to a building with people in it, and you have only moments to keep him from tossing the match, then yes lethal force would be OK because you are defending others from the imminent deadly peril. You would not be allowed to shoot him in the back as he ran away after having set the fire. At that point the peril has been let loose and you must focus your attention on it.

Take a deep breath, count to ten, and let it sink in :D

[Graystar]

Not only is what you described not what was presented as “matching force”, but it is still wrong. People aren’t under any obligation to consider the mental state of their perceived attacker or to access how much force they have encountered or may encounter when fear for your life is raised.

If I’m standing with my weapon drawn and some unarmed guy continues to come toward me even though I’ve warned him to not come closer, I am fully justified in using deadly force against him even though he is unarmed and even though he hasn’t used *any* force against me. The only requirements for the use of deadly force are imminent danger and a reasonable fear for your life. The amount of force your attacker is capable of has nothing to do with it.

Date-rape comes to mind as a perfect example of when “a friend who’s goofing around” should be shot. If someone doesn’t get off you when you say get off, shoot him!

I say again, this "matching force" concept is extremely dangerous and could land innocent people in jail, like that rape victim in South Africa. She was able to get the gun away from her attacker, and shot him to get away. He was charged with rape and she is being charged with attempted murder. We can't let that happen here.

[Baba Louie]

If I’m standing with my weapon drawn and some unarmed guy continues to come toward me even though I’ve warned him to not come closer, I am fully justified in using deadly force against him even though he is unarmed and even though he hasn’t used *any* force against me. The only requirements for the use of deadly force are imminent danger and a reasonable fear for your life. The amount of force your attacker is capable of has nothing to do with it. It'd be intersting to hear what your local DA's office thinks about that scenario. I'd probably call it manslaughter at the least if you did pull the trigger on him. Have you tried to retreat from him or are you standing fast? Inside your home or out in the public domain? Is he older than you? Smaller than you? Did he have anything in his hands?
Lotsa questions I know and you don't have to answer them... just think about them. And maybe ask your local deputy district attorney what his/her thoughts are.
Discretion is, sometimes, actually, the better part of valor.

[Cosmoline]

What I'm telling you folks has been established law since there was established law. It's an extremely basic principle. And it's the reason why you can't shoot someone without a reasonable belief that they pose an imminent and unlawful deadly threat to you or another. There are exceptions to this rule, but it is the general rule none-the-less. The matching force rule is the starting point in any discussion of self defense. It's not some new legislation I'm suggesting, it's bedrock black-letter law in all fifty states and in most nations.

Your responses tell me you're still not paying attention to what I'm telling you. Under the default rule you are not allowed to use deadly force unless you reasonably believe you or another is faced with imminent deadly force. Very simple. If you are faced with non-deadly force, you are not allowed to use deadly force. Unless the law creates an exception as with the homestead or in case of rape.

[Graystar]

Lotsa questions I know and you don't have to answer them... just think about them.Sure. And here are some for you to think about...

Am I obligated to risk him pulling out a knife, which was tucked in his pants behind his back, just because I didn’t see it?

Am I obligated to risk a hand-to-hand encounter with a Karate black belt just because he’s smaller than I am?

Does the simply physical ability to run a half-mile away in an open direction qualify as a “retreat with complete safety” when you know you may turn around just to find that the perp has simply followed you?

Am I under any obligation at all, to risk my life, when I am in fear of losing my life?

[Graystar]

What I'm telling you folks has been established law since there was established law. It's an extremely basic principle. And it's the reason why you can't shoot someone without a reasonable belief that they pose an imminent and unlawful deadly threat to you or another. There are exceptions to this rule, but it is the general rule none-the-less. The matching force rule is the starting point in any discussion of self defense. It's not some new legislation I'm suggesting, it's bedrock black-letter law in all fifty states and in most nations. So if someone stops me in the street and demand that I hand over my money, and this person has no weapons in his hands...are you saying that I *can't* shoot him?

[Stand_Watie]

Arkansas may be somewhat unique in allowing the use of deadly force to protect limbs and eyesight. Most states allow the use of deadly force only when in fear for your life.

I don't know how many states do allow this, but at least three that I know of (Texas, Michigan and Florida) allow the use of deadly force to defend against "serious bodily injury", "great bodily harm" or words to that effect.

[carebear]

So if someone stops me in the street and demand that I hand over my money, and this person has no weapons in his hands...are you saying that I *can't* shoot him?

Yep.

If someone just walks up and says "give me your money" of course you CANNOT shoot them. Otherwise you'd be capping hobos left and right. (and that's not right..... unless they're CLOWN hobos :uhoh: )

There has to be an immediate implicit or explicit threat and a 'reasonable belief' that the means exists to carry out the threat.
(the aforementioned 'boilerplate' self-defense law)

ie. "give me your money or I'll KILL you, accompanied by a weapon or suggested weapon (pointed finger in pocket) or a disparity of force (2-3 unarmed guys your size or just one ninja with Real Ultimate Power :D)

The disparity of force issue is why the armed potential rape victim can typically fire away at will at an unarmed man who (in a reasonable way)threatens rape. (rape=grievous bodily harm)

[Cosmoline]

So if someone stops me in the street and demand that I hand over my money, and this person has no weapons in his hands...are you saying that I *can't* shoot him?

Yes. Otherwise you'd be able to shoot the homeless, creditors, politicians, and others who make such requests with no iron for assistance.

[Graystar]

Yep.
Yes. Well, in New York State at least, you’d both be wrong.

S 35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself...
...
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
...
(b) He reasonably believes that such other person is committing or
attempting to commit a kidnapping, forcible rape, forcible criminal
sexual act or robberySo you see, If I believe that the person is robbing me, I can use deadly force against him. This is typical across the country. That is why Bernard Goetz did not go to jail for shooting those teenagers. As I recall, they didn’t even get a chance to demand his money before he fired on them (they asked for money.)

[Col. Mustard]

North Carolina requires an immediate threat of death, serious injury or rape to justify the use of deadly force. Retreat/withdrawal must be attempted if possible, except in the home. In the home, an intruder may be shot while attempting to break in; but once he's inside, he must pose a threat to you in order to justify the use of deadly force. (I am not making this up.) If you walk into your living room and find an intruder with your TV set in his arms, you may not shoot him (unless he tries to hit you with it). You're entitled to use deadly force to protect a third person if that third person would have been entitled to use deadly force.

Clearly, there are lots of gray areas. "Serious injury" is not defined, and once you are engaged in a fight that could lead to serious injury, it may be impractical to draw your gun, or the BGs might find and take it.

Unfortunately, the only correct answer to this dilemma is the preference to be tried by twelve rather than carried by six.

[Graystar]

...but once he's inside, he must pose a threat to you in order to justify the use of deadly force. OMG even New York isn’t that nuts!
3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.

[carebear]

Greystar,

I demur. For a crime to be "robbery" by any criminal code I'm aware of, it 'requires force or threat of force' to achieve the unlawful taking. That's one thing that differentiates it from larceny, burglary and other kinds of theft.

In the Goetz case, the issue was the reasonability of Goetz's belief that the muggers constituted an immediate, unavoidable threat and that their numbers (5 to 1), given the totality of the circumstances, provided the "implicit threat of force" (via disparity of force) that made the request a 'robbery' under the law and justified his use of deadly force in response.

One teen walks up to a grown man on the subway and asks for $5 with no weapon present and he fires? That man is is going up on murder charges.

[Graystar]

In the Goetz case, the issue was the reasonabilityIn *every* case the issue is whether the belief is reasonable.

You’re probably right that shooting a lone person because he *asked* for 5 bucks is not going to hold water. However, in the scenario I gave I said the person *demanded* I hand over my money. And the justification laws, at least in New York, don’t require that an actual robbery take place. What’s required is that the person defending himself reasonably believes that this other person is committing or attempting to commit a robbery.

If someone you don’t know comes up to you and demands that you hand over all your money, it is reasonable to assume that you are being robbed. At that point (in New York) you’re justified in using deadly force.

[carebear]

ARTICLE 160--ROBBERY
Section 160.00 Robbery; defined

Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:

1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or

2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.


Section 160.05 Robbery in the third degree

A person in guilty of robbery in the third degree when he forcibly steals property.

Robbery in the third degree is a class D felony.


Section 160.10 Robbery in the second degree

A person is guilty of robbery in the second degree when he forcibly steals property and when:

1. He is aided by another person actually present; or

2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:

(a) Causes physical injury to any person who is not a participant in the crime; or

(b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or

3. The property consists of a motor vehicle, as defined in section one hundred twenty-five of the vehicle and traffic law.

Robbery in the second degree is a class C felony.


Section 160.15 Robbery in the first degree

A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:

1. Causes serious physical injury to any person who is not a participant in the crime; or

2. Is armed with a deadly weapon; or

3. Uses or threatens the immediate use of a dangerous instrument; or

4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.

Robbery in the first degree is a class B felony.

Given the corpus of the law, I'm surprised Goetz got off using fear of robbery as an affirmative defense. Except that there were 5 of them they don't seem to met the terms of the crime. He was lucky the people of NYC were fed up with predators on the subway. But you're right on the reasonability issue. That's good for you citizen's of NY. :D

I think part 4 of first degree is stupid, how are you, joe citizen, supposed to know it was unloaded. Luckily, he's legally yours at third degree. ;)

Personally, I guess I'd have to wait till they gave me the alternative, the "or else".

I'd hate to shoot a guy who didn't have an "or else" on tap.

[Graystar]

Given the corpus of the law, I'm surprised Goetz got off using fear of robbery as an affirmative defense. That’s because you completely missed what I said. The issue is not whether an actual robbery was taking place. The issue is whether the person reasonably believed that a robbery was being committed.
S 35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself...
...
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
...
(b) He reasonably believes that such other person is committing or
attempting to commit a kidnapping, forcible rape, forcible criminal
sexual act or robbery *That* is why he got off. And that is point I was trying to make earlier about risk. The law does not obligate you to place your life at risk before attempting to defend it. That is why the retreat requirement is only operative when you can do so “with complete safety.” And that is why the robbery that you reasonably believe is being attempted doesn’t have to match the description of robbery laid out in the law. That’s not the criteria. The “reasonable belief” is the criteria.

[Silent-Snail]

Last I heard here in Wisconsin if a BG is in your house you are required to at least attempt to leave before using deadly force. Please somebody truthfuly tell me I'm wrong on this? If I find out that this is true I'm moving to Texas as soon as I can.

[carebear]

That’s because you completely missed what I said. The issue is not whether an actual robbery was taking place. The issue is whether the person reasonably believed that a robbery was being committed.

AHA! But I DIDN'T! YOU missed what I wrote!

But you're right on the reasonability issue. That's good for you citizen's of NY.

So THERE! :p Yeah, okay, it was a poorly written little paragraph. 'I was multi-tasking' is my only affirmative defense. :banghead:

Sorry for that last misunderstanding. My fault.

I think the fact that the jury actually saw the reasonability from his perspective is what made the acquittal such a surprise to all and sundry. Good jury instructions from the judge?

Were there any witnesses to his "have another" statement besides the assailants? It seems like he got railroaded at the civil trial because he didn't go down at the criminal.

[Graystar]

So THERE! Yeah, okay, it was a poorly written little paragraph. 'I was multi-tasking' is my only affirmative defense. lol! Got it ;)

Good jury instructions from the judge? I think it was more like people being sick and tired of the crime in the city.

Were there any witnesses to his "have another" statement besides the assailants? It seems like he got railroaded at the civil trial because he didn't go down at the criminal. As far as I know there weren’t. Don’t know if I’d call it railroading...New York juries are famous for their huge awards, and he really did bring it unto himself by making that remark and shooting again. Personally, I think he should have gone to jail for the shooting. In my view there were two shootings...the first was justified, the second wasn’t. However, the prosecutor treated the two as one shooting, so he got off. Of course, the best thing that happened was that the crime rate dropped by 50% immediately after the shooting was publicized, and stayed at record lows for a few weeks after. If that aint proof that concealed carry can reduce crime...I don’t know what is.

[Cosmoline]

Robbery includes the threat of force, and in this case you are allowed to presume a threat of deadly force and use deadly force to counter it.

If someone merely comes up to you and demands money, without more, there is no robbery or attempted robbery. And you'd better not kill them. Understand?

[Graystar]

If someone merely comes up to you and demands money, without more, there is no robbery or attempted robbery. And you'd better not kill them. Understand? I understand what you are saying. You're still wrong (at least in New York.) The criterion for the use of deadly force is not that an actual, technically accurate robbery is occurring. The criteria is that the person defending themselves reasonably believes that such an attack is occurring or being attempted. If it's not obvious to the cops that the belief was reasonable, then they let a grand jury, and if necessary a jury, decide whether the belief was reasonable.