Mistaken case of self-defense. Penalties.


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armedpolak
October 16, 2006, 11:03 AM
So after being burned by THR on friday, i honestly took the criticism constructively, picked up a copy of "Florida Firearms, Laws, Use, and Ownership" read it ALL, and would like to ask few questions.

I read, that presenting a weapon, without pointing it at a BG nor firing it, is a use of non-deadly force. Pointing and/or firing on the other hand, is no doubt, deadly force.

So, if my fear is legit, I fear for my life and/or great body harm, I can both present (with intent to use), and IF that doesn't stop the BF in his tracks, I can fire.

HOWEVER!!!

If I point at a, in my honest believe, BG, and the jurry finds it differently, then I'm facing mandatory 3 year prison term for agrevated assault! If I fire, no metter if I hit anyone or just fire a warning shot, I'm facing mandatory 20 years term for agrevated assault with a firearm used!!!

Friggin scarry! What is your take on this?!? In Florida, would you risk presenting the handgun, if you feared harm will happen to you, hoping from the getgo that the sight of a gun will prefent an attack? At what point do you personally believe I'm justivied in clearing the leather, pointing at the ground, pointing at the BG, pulling the trigger. From what I read, in those situations, you really must be thinking clearly, you take it one step to far (and not nececarly pull the trigger) and you might be in deep poop.

Please advise!

P.S. To all who flamed me before for having a beer. You were right. I was wrong. I now fully realize the responsibility I've been given. From now on, zero tolerance!

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armoredman
October 16, 2006, 11:57 AM
Excellent. Yes, personal responsability grows exponentially when armed, and triply so when involved in any self defense actions. Take some classes, preferably those with plenty of range time, and discretionary shooting.
This is why I like the Castle Doctrine laws - didn't Florida just adopt that? Your lawbooks might be outdated. I still reccomend the Florida gun Owners' guide, and another great resource, packing.org .
Welcome to the ranks of responsable law abiding firearm carriers.

TX1911fan
October 16, 2006, 12:00 PM
Texas law contains a similar provision. It is permissible to threaten deadly force by producing a weapon, and as long as your intention was to show the BG that you mean business, you have not actually USED deadly force.

9.04. THREATS AS JUSTIFIABLE FORCE. The threat of
force is justified when the use of force is justified by this
chapter. For purposes of this section, a threat to cause death or
serious bodily injury by the production of a weapon or otherwise, as
long as the actor's purpose is limited to creating an apprehension
that he will use deadly force if necessary, does not constitute the
use of deadly force.

There are problems with doing so, however. First is the one you highlight. If you are wrong, or the jury doesn't see it your way, you are screwed. But, that is the same if you have a justified self defense shooting.

The bigger problem is this. My CHL instructor calls 9.04 the "Please Shoot Me" statute. By presenting my weapon, I have now given the other person the right to claim THEY feared for their lives, or for grevious bodily injury, and can now draw and shoot me.

I think I will keep my gun holstered unless I am going to use it, despite Section 9.04 to the contrary.

MechAg94
October 16, 2006, 12:15 PM
The instructor in my classes said pretty much the same thing. Don't draw it unless you are ready to fire it.

pax
October 16, 2006, 12:22 PM
At what point do you personally believe I'm justivied in clearing the leather, pointing at the ground, pointing at the BG, pulling the trigger.
From Massad Ayoob's lecture in LFI-1 (a course I highly recommend to anyone who carries a deadly weapon):

A defender is justified in using deadly force whenever there is an immediate, and otherwise unavoidable, danger of death or grave bodily harm to the innocent.

Note the elements here.

The danger must be immediate. A threat to kill you tomorrow doesn't count; a threat to come back and kill you ten minutes from now doesn't count.

The danger must be otherwise unavoidable. Shooting someone should literally be your last hope of staying alive and uninjured. If you've got another way out, you should take it.

The danger has to be a serious one: only death or grave bodily harm qualify. Grave bodily harm means an injury that could cripple you for at least a year, if not for life. It doesn't mean a slap, a punch in the nose, or an insult. In order to meet this standard, you must be reasonably convinced that you will literally die if you don't defend yourself.

The danger has to be to the innocent. If you are a "willing participant" in the events that led up to the shooting, if you egged on the attacker by word or deeds, if you flung insults or insulting gestures, the law might find that you're are a "willing participant" and thus aren't eligible to claim the shooting was justified by self-defense.

All of the above would be judged by what's called the "reasonable person" standard: would a reasonable and prudent person, knowing exactly what you knew at the time (and no more!) have come to the same conclusions you did about the seriousness of the situation and your ability to escape it without shooting someone? The jury will probably be instructed to ask and answer that question; it's your job to do everything you can to assure that the jury will have to answer "yes" when they ask that question.

Hope that helps. No flames here -- but next on your agenda should be to get some training under your belt. Start by reading a bit: Massad Ayoob's In the Gravest Extreme is an excellent resource. Follow up by enrolling in an LFI-1 class next time one comes to your area.

pax

1911Tuner
October 16, 2006, 12:24 PM
A wise man once quipped: (Can't remember exactly who he was.)

"Shoot...Don't shoot. Either way, you'll regret it."

Spreadfire Arms
October 16, 2006, 02:08 PM
The instructor in my classes said pretty much the same thing. Don't draw it unless you are ready to fire it.

i think there is a tactical advantage to drawing it but keeping it out of sight (i.e. clear it from your concealment garment and out of the holster, in your hand, and behind your leg), if you see a very likely deadly force threat.

i can see how some CHL instructors tell you that, however, the opposite side of the coin is that obviously the bad guy did something to make you expose your weapon. you should be able to articulate that. if the bad guy then draws a gun in response to you drawing your gun, at least you can articulate what the bad guy did in order for you to think you were in imminent fear for your life and then consequently exhibited a firearm first, which, the law allows you to do.

i discuss some real life scenarios in my CHL classes. for example, being in your local convenience store with a 6-pack of beer in one hand and a bag of chips in the other, and then you come around the corner of a store display and some bad guy is pointing a gun at the store clerk. he also is standing right in the only doorway to the place since thats where the cash register is. what do you do?

or another example: you're at the ATM machine, and someone approaches you trying to engage you in conversation. notice the red flag here. is it normal behavior for someone to approach you and engage you in conversation at an ATM machine? would a grand jury consider that abnormal behavior? would this behavior possibly make you in immediate fear for your life? these are things as a CHL holder you may want to consider in advance, so you know what you'd tell the guy (to stay away from you), and if he continued to approach, what you'd do. i think you'd be 100% justified in exhibiting a firearm if someone approached you at an ATM, tried to talk to you, and you told him to stay away from you, and he kept coming. i wouldn't rely on the teaching that you must only draw your firearm until ready to shoot. at this point are you justified in shooting if you don't see a weapon? i'd think not. but at least you can get your firearm out and be ready for a deadly encounter.

also, keep in mind, action is faster than reaction. they should have discussed that in your CHL class as well. if you already have your firearm out, and the bad guy goes to draw, you have the drop on him. you should be able to get a shot off fell before he does. also know that the converse is true. if you wait for the bad guy to draw a firearm, then you have the disadvantage and he can shoot you before you can shoot him.

i have also talked to some people about who you take your CHL class from. you can choose the cheapest guy in town, but remember, he will be the one who testifies on your behalf to a jury if you ever get into a shooting. the question you may ask yourself is, do you want this man representing you as your "use of force" expert in court? if he told you NOT to exhibit your firearm until ready to use it, even though the law allows you to do so, and you did, you can bet your ass that he will say to a jury that he trained you NOT to do so, if this was a material issue in the investigation. but the question you have to ask yourself is, why was the bad guy carrying a gun anyway? chances are he wasnt carrying with a CHL.

alot of the CHL instructors in my instructor class had no other training documentation or experience in regards to carrying a firearm other than a 4-day CHL instructor class. with only that credential, a court of law would most likely not deem many of them credible as expert witnesses in use of force issues when compared what use of force experts the state would use against you (like DPS Firearms Instructors, LE Firearms Instructors, etc).

i think i have enough in my background to justify teaching use of force, and i would be more than happy to testify on the behalf of anyone who took a CHL course from me.

id rather be tried by 12 than carried by 6. just some food for thought.

griz
October 16, 2006, 04:27 PM
hoping from the getgo that the sight of a gun will prefent an attack

That's the main issue here. I don't know enough about the law to give legal advice, but drawing a gun will be seen as an escalation of force in almost every situation. That's true even if your goal was to "prevent an attack". If you can explain why that was your best course of action then do what you need to do, but my plan is to not draw unless I am justified in shooting.

Rex B
October 16, 2006, 04:57 PM
I haven't read Ayoob's book yet, but I do recall reading an excerpt where he decribes crossing a dark, deserted parking lot to his car. Seeing a couple of potential BGs positioning them selves to attack him, he discreetly revealed his carry weapon without breaking stride or making eye contact. When they saw he was carryng, they decided they had other things to do.

BullfrogKen
October 16, 2006, 05:00 PM
armedpolak said: So, if my fear is legit, I fear for my life and/or great body harm, I can both present (with intent to use), and IF that doesn't stop the BF in his tracks, I can fire.

pax's words summed it up the best. And I agree, get some good training, not just training, but good training.

I've seen folks ask some variant of this question often. "If he does this . . . can I shoot him?"

No.

Your decision to use deadly force is not driven as a result of violations on a checklist. You can use deadly force if it was necessary to avoid death or serious bodily harm, and you were justified. This often also extends to the protection of another. Again, pax summed it up quite well.

Your gun is not a tool to use to convince someone of your earnestness, or to show you have the ability. I'm of the opinion that if it comes out, its because the threat is imminent. If the display is enough to immediately halt the action that caused me to make that decision, then that's quite fine. But I won't be pulling it out simply to show I'm serious.


You need to find ways to assert yourself without needing the gun to do it. Displaying a gun doesn't make an unsure person appear strong.

vynx
October 16, 2006, 05:21 PM
WHat if instead of presenting your firearm you state or warn them "Don't mess with me I have a gun"

WHat if they escalate the threat after you warn them - would it be logical to think hey I warned them I have a gun and they continues or attacked so they MUST be planning on deadly harm?

(I'd say I am armed but some maroon might think "so what I have arms too")

When I had some military training we were taught it is one action unholster. aim and fire 2 times. Some guys if you show them the gun will challenge you - something like, "I don't believe you have the bxlls to pull the trigger" so if you unholster you had better have a good reason and if you have a good reason you had better fire.

I know civilian life is different but I would be upset if someone pointed their gun at me because they were worried when I walked up and asked them a question.

Rex B
October 16, 2006, 06:18 PM
In that situation I'd have my hand in my pocket ready to draw, which pointedly looking at the person and moving to safety - car , building etc. - and/or to protect my companion. I think even the dumbest miscreant knows how to read body language that says "I am concerned and prepared to defend myself".

RioShooter
October 16, 2006, 07:05 PM
Good for you. I know your were "raked over the coals" on your previous post, but deciding to CCW is one of the most serious decisions you'll ever make. Those who treat it casually will pay the price in the future.

Rex B
October 16, 2006, 07:12 PM
"I know your were "raked over the coals" on your previous post"

I was? Must have missed that, or my skin is thicker than I thought

MDMadrid
October 16, 2006, 07:35 PM
Pax said:The danger has to be to the innocent

I have a question about being innocent. In South Carolina if you come to defend someone else you assume all responsibility of the events leading up to the "shooting" Now, that being said, this weekend I was at some "festival" with my family. I was carrying, I happened to think..."if someone came into all of these people and started shooting would I draw and shoot at him? (keeping in mind what is behind him of course) but then I thought that I don't know what lead up to the shooting so NO I wouldn't. Maybe the person who he/she was shooting was involved in provoking the fight, I don't what to go to prison for him. But what if after he/she shot that person, they started shooting at others as well? Would/should I then be justified to help those people? Or should I in both cases just get my family to safety and call 911 and not even think about drawing my gun?

real_name
October 16, 2006, 07:41 PM
"I know your were "raked over the coals" on your previous post"

I was? Must have missed that, or my skin is thicker than I thought

You weren't, he was referring to Armed Polack, who made a thread on the weekend wherein a few people chastised him for drinking and carrying, carrying a gun he had bought that same day and was unfamiliar with, and not being fully sure of his state's carry laws.

It's all water under the bridge now hopefully.

armedpolak
October 16, 2006, 08:22 PM
real_name,
i cleaned up my act. i read the laws. shot the gun for few hours. got a new holster, so i don't print, and decided to not mix drinks with guns. from now on i'll be the designated shooter:) or i'll bring one with me.

once again, apologies to all i flamed back at, you were right.

BullfrogKen
October 16, 2006, 10:00 PM
vynx said: WHat if instead of presenting your firearm you state or warn them "Don't mess with me I have a gun"

I defer to my previous statement:

You need to find ways to assert yourself without needing the gun to do it.

Kim
October 16, 2006, 11:10 PM
Just do what I did while in Medical School. Carried my .38 special stub nose in an appropriate purse with my hand in the purse ready to shoot if needed. Now this was at nightime walking from the ER to the Dorm..... Most Medical Schools are in a BAD part of town and a prime place to prey on a mostly female workforce. I woud not have to waste my time drawing..... I figured I woud have very little time or might just be grabbed before I knew it..... But I planned on going out fighting. Plus I was mentally aware and poised to react appropriately... Scary place at 0300 walking in a empty garage and deserted walkway to the dorm...

beerslurpy
October 17, 2006, 12:29 AM
Factual mistake doesnt destroy a claim of self defense. As long as a reasonable person in your shoes would beleive they were in danger of severe bodily harm, you can use deadly force.

One of the formative civil cases in the theory of self defense is that of Courvoisier v Raymond in which a police officer emerged from a crowd of rioters with a drawn gun and was shot by a shopkeeper. The appellate court held that the lower court was mistaken in giving jury instructions to decide whether the plaintiff was actually attacking the defendent when he was shot. What matters is what a reasonable person would do in his place, faced with the same circumstances.

Hoppy590
October 17, 2006, 12:47 AM
iv been taught 3 things in my life

1. never present a gun unless your going to use it
2. Never point a gun at something you do not wish to shoot
3. if your gunna shoot something. you are shooting to kill as the situation must of esculated to the absolute need for something to die.

those all mean If 1 then 2 if 2 then 3. 1 so there for 3
or as outkast would put it

"dont pull that thang out, unless you plan to bang. dont do the bang unless you plan to hit something" :neener:

Powderman
October 17, 2006, 01:00 AM
A defender is justified in using deadly force whenever there is an immediate, and otherwise unavoidable, danger of death or grave bodily harm to the innocent.


There it is. Best advice--don't read into it, don't try to hang conditions on it, don't second guess it. There it is, in black and white--and unless I'm seriously mistaken, you will find that the use of force laws in all states--yes, and even some foreign countries--will have these conditions.

In a nutshell:

Stay out of trouble, and dangerous spots.

If you do that, and you see danger building itself, LEAVE. Period.

If you cannot leave, AND you find yourself under the conditions noted above, then do what you have to do.

Shoot to stop.

And go home to your family.

Cosmoline
October 17, 2006, 04:30 AM
I won't draw unless faced with imminent deadly harm, EXCEPT when I'm at my own home or on my own property. Then I may well have a rifle at the ready until I figure out who you are and if you are posing a threat.

WHat if instead of presenting your firearm you state or warn them "Don't mess with me I have a gun"

I think you're both risking an escalation and giving up your biggest tactical advantage. Concealed means concealed, and that means you don't tell threats that you're armed. You have no duty to warn at all before defending yourself. Besides, if you have time to get in a back-and-forth yapping debate with the goblin, you probably have time to get out of there.

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