Friend gets sucker punched by unknown, can we draw weapon?


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fbernar
May 19, 2011, 06:48 AM
Okay. This is a completely hypothetical question (this has NOT happened to me). Let's say I am walking with a friend or group of friends and all of a sudden an unknown person (or group of unknowns) comes and begins to hit one of my friends or several of them (sucker punch I guess).

Am I justified, in the state of Florida, to draw my weapon to try and stop this from continuing in efforts to protect my friends/family?

Thank you in advance. I just have so many questions that weren't really answered in my CCW class that I want to know the answers to.



Since I'm asking... here are the others:

I'm sitting in my car and someone begins to try to open the door by force and yelling for me to get out. Although the person is not showing a weapon, I am justified in drawing my weapon due to the castle doctrine correct?

This question is similar to the first. Let's say I am walking down the street and all of a sudden a guy that I do NOT know gets jumped by a group of people and he is on the ground getting kicked and what not, am I justified in drawing my weapon?


THANKS EVERYONE! I love this forum. God bless you all!

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Shadow 7D
May 19, 2011, 06:58 AM
Try S&T
random attacks rarely occur, and even then, it is often a failure of awareness that allows it to get so far before you realize what is going on.

POST YOUR STATE
sorry, but the laws of your locality, state and country are going to determine what is, and isn't legal.

Ohio Gun Guy
May 19, 2011, 07:01 AM
"Am I justified, in the state of Florida"

Friendly, Don't Fire!
May 19, 2011, 07:05 AM
I would say yes, however I do not live in Florida nor do I know their particular gun related laws.

In my own opinion, I have a health issue that makes me a bit weaker than most people who are my size and age. If some dude 6'-7'' and weighing 380 pounds sucker-punches me, I will most likely be out like a light, if I am not, I am not going to wait for the second or third punches. I would draw out of fear for my life.

The same is true if that same person were to open my vehicle door and try to "drag me out" of the vehicle (or tries to drag me out through my open window - with my seatbelt still on)! It would only make sense that a person wanting me out of my vehicle is doing it so he can either steal my vehicle and/or beat the daylights out of me. Again, out of fear for my life, my weapon would be trained on him. What happens next is up to him. At that point, it is his move so to speak. If he suddenly backs off upon seeing the gun, then great, no harm done. Hopefully I have enough info on this guy to get the police involved pronto.

In the second scenario, I would make as much noise as possible to try to get bystanders or anyone to call the police. Yell, scream, lay on my horn, etc so all the attention is on this huge gorilla trying to pull me out of my open window.

Friendly, Don't Fire!
May 19, 2011, 07:08 AM
"Am I justified, in the state of Florida"
That could have been edited in before the timer that shows an edit happened on the post.

Zoogster
May 19, 2011, 08:01 AM
Using a weapon to stop an unarmed attack by a single individual is often going to be a jury judgment call and it can go either way with the exact same circumstances depending on the jury.


A situation with a group of active attackers also varies, especially if it is one group being attacked by another.
A group attacking a single individual can be a clear disparity of force, but a group attacking another group may not be so obvious, and it can go either way.


The perception of the jury counts a lot. Irregardless of the actual law. Even if legally justified the amount of force used against unarmed people can determine the sympathy of the jury for either side and whether you will be found guilty because of perceived excessive force.
Age and other circumstances also will play a role in jury perception. If they perceive some young guys over reacting to a simple punch, and much of society thinks a punch is minor, then they may find the pulling and/or use of any weapon excessive and illegal escalation of force. Judging it like they would two school kids fighting on the playground and one pulling a weapon.
Yet the same jury may find a couple older guys being harassed or attacked by some young thugs justified, not seeing it as peers fighting like they would for men around the same age as the attackers.
Whether they envision you as young hotheads ready to fight or escalate anything that comes your way, or as mature responsible adults, can determine whether they feel your judgment is good, and as a result whether the same force was justified or excessive.
What a middle aged family man might be found justified for doing a young college student may go to prison for.
The law doesn't say that, it may not be fair, but it is reality.

There is no simple answer in many such cases. If a gun is used against an unarmed person, especially if actually fired, a jury will typically decide the outcome and whether it was legal or illegal. Such a discretionary decision can be decided or influenced by all kinds of unrelated factors, from the character of the individual, to the experiences of members of the jury.
It is certainly a scenario you do not want to find yourself in.

fbernar
May 19, 2011, 08:52 AM
The "simple punch" term is what confuses me. There are some people that can one hitter quitter you and break your cheek bone with one punch. This is to say that there ARE MANY people out there that are capable of hitting with enough force with a PUNCH that it COULD CAUSE serious bodily harm as is called for by most state laws.

M-Cameron
May 19, 2011, 09:01 AM
i dont really get these threads regarding whether you are 'legally justified'

you carry a gun for protection.....

ask your self "is the life of myself or my friends/ family in eminent life threatening danger?"

if you answer 'yes'......are you really going to allow yourself or family to be killed because it might not be legal?

fbernar
May 19, 2011, 09:10 AM
M-Cameron,

The purpose of these threads, well at least mine, is to educate myself and have questions I have answered. Or maybe you would prefer people with questions to not ask and then we pull out our weapons and go to prison. ;-p

But seriously, I'm asking because there are situations where your LIFE may not be in danger, but your facial bones might be from punches as I have mentioned. Another question: does the possibility of a broken nose count as "serious bodily harm"?

M-Cameron
May 19, 2011, 09:30 AM
M-Cameron,

The purpose of these threads, well at least mine, is to educate myself and have questions I have answered. Or maybe you would prefer people with questions to not ask and then we pull out our weapons and go to prison. ;-p

i understand the threads initial purpose.......but if you honestly believe you are going to be killed if you dont act......its kind of a non-issue......unless you hate prison more than death

pretty much, if you need to ask a question when you pull out your gun.....you probably dont need to.


But seriously, I'm asking because there are situations where your LIFE may not be in danger, but your facial bones might be from punches as I have mentioned. Another question: does the possibility of a broken nose count as "serious bodily harm"?

for a broken nose......probably not.........a broken nose is no threat to your life

and i dont imagine a jury would look to kindly on someone shooting an unarmed guy he got into a fight with.

Alec
May 19, 2011, 09:30 AM
Considering that a sufficiently powerful and well placed punch to the face can kill, I would say yes.

fbernar
May 19, 2011, 12:31 PM
Alec, that's exactly what I mean. People act like a punch or something is not a big deal. A broken nose isn't serious bodily harm? So should I say, "Please sir. Punch me in the kidney region and break some ribs while you're at it so THEN I can use my weapon."

I mean, not everyone can fight as well as their attacker. I just wish the government were more concrete sometimes. Am I alone in thinking like this?

quatin
May 19, 2011, 12:54 PM
When I took my CCW class here in Florida, I also had all these questions. Most of these questions were waved off with "depends" or "technically, but....". I was just as confused when I left as when I entered. The real answer that nobody wants to say is, you're "technically" justified in all 3 situations. However, you're still at risk for facing consequences even if the law permits you to do so. You could shoot a guy breaking into your house at night and still get prosecuted with a risk of getting convicted. Unlikely, yes, but still possible. I wish they had outright said this in the beginning and I would not have applied for my permit.
If you're truly worried about these border line situations, prepare yourself with non-lethal tools. OC spray, tazers, batons and etc. The risk of repercussions gets higher the more hurt a person is (even if it's a criminal). If someone dies, you're almost guaranteed to face some consequences.

sarduy
May 19, 2011, 12:55 PM
i think it's time for your friend to get his CCW :cool:

snubbies
May 19, 2011, 01:19 PM
Pulling you weapon in an effort to protect your friend is one thing, PULLING the trigger is another can of worms.

Kleanbore
May 19, 2011, 01:47 PM
Posted by fbernar: Okay. This is a completely hypothetical question....Asking for what amounts to legal advice on the Internet is generally a poor idea. Consult a knowledgeable local attorney.

Let's say I am walking with a friend or group of friends and all of a sudden an unknown person (or group of unknowns) comes and begins to hit one of my friends or several of them (sucker punch I guess). Am I justified, in the state of Florida, to draw my weapon to try and stop this from continuing in efforts to protect my friends/family?Generally speaking, it is lawful to do so if and only if you have reason to believe (1) that the attacker (s) have the ability and opportunity to cause death or serious bodily harm and that they intend to do so and (2) that you and your friends have no other reasonable means of preventing death or serious bodily harm.

Note that in your jurisdiction (as in most) you may not lawfully draw your weapon unless you are justified in actually using deadly force.

I'm sitting in my car and someone begins to try to open the door by force and yelling for me to get out. Although the person is not showing a weapon, I am justified in drawing my weapon due to the castle doctrine correct?The "black law" as written speaks of a person attempting to remove someone from an occupied vehicle. Whether there is case law on this I do not know, but I would seriously doubt that one may lawfully shoot someone because he is yelling for him or her to get out of his or her car. Lay opinion.

This question is similar to the first. Let's say I am walking down the street and all of a sudden a guy that I do NOT know gets jumped by a group of people and he is on the ground getting kicked and what not, am I justified in drawing my weapon? Whether you know a person or not does not enter into the legality, but what is actually going on may not be what you believe you see. Would you really want to shoot people who are trying to arrest a felon, or who are defending themselves against a violent criminal actor? Have you considered how your story may not be consistent with all of the other testimony if you have intervened in an act of domestic violence?

Understand that unless you are able to provide at least some evidence supporting your claim of reasonable belief, and unless the state does not provide strong evidence in contradiction--that is, unless you are able to show by a preponderance of the evidence that you were justified under the law-- you may well face prosecution and possibly a civil suit. As Zoogster points out, that is a situation in which you do not want to be.

The best lay advice I can give is, consider your firearm the last resort, and draw it only if you have a clear and objective reason to believe that it is immediately necessary to use it to prevent death or serious bodily harm.

kingpin008
May 19, 2011, 01:55 PM
Fbernar - Kleanbore has given great advice. I suggest you seek out a local lawyer if you need any further clarification specific to your location.

snubbies
May 19, 2011, 02:14 PM
Sorry for the giberish I got it fixed

Leadhead
May 19, 2011, 02:27 PM
What's the point of carrying if you can't use it?
If you un holster a gun and present it to stop violence without actually shooting that would seem like an ideal outcome.
Obviously if you shoot someone you will have to defend your actions in court.

quatin
May 19, 2011, 02:28 PM
The leading self-defense attorney in Florida is John Gutmacher. I sort of remember a quote of something in the order of $800 an hour for consultation with him. You'll need several hours to sort through the questions you just asked.

He wrote a book called "Florida Firearms Laws, Use & Ownership" as a cliffs notes on his opinions of what the law says. I bought the book, because I couldn't get my questions answered in the CCW class either. You can get it for $20-$30, but it doesn't give you the clear cut yes/no answer you're looking for. The gist of it is, you're going to get in trouble if you shoot someone, even if the law clears you.

brickeyee
May 19, 2011, 02:38 PM
Best survey the case (common) law in your state/county/city etc.

In Virginia fists are NOT considered lethal weapons (this does not mean you cannot argue they could be in any specific case, just that you WILL have to argue your response was appropriate before the court) so responding immediately with lethal force absent other conditions will put you in a bad way at trial.

leadcounsel
May 19, 2011, 03:42 PM
The magic language is a "reasonable subjective fear of imminent serious bodily harm or death to you or someone else whom is an innocent victim" or words to that effect, varies by state. Look at the state statutes and familiarize yourself with them. This is general information ...

If your "friend" were in a fisticuffs brawl and a mutual combatant, then probably not. If he was jumped and attacked then possibly. If the attacker had a weapon, or numbers, then likely yes.

If a reasonable person, from a subjective standpoint, could determine that being drug from their car could lead to immediate serious injury or death, then yes.

Being outnumbered and beaten would count, or being attacked by a person with a weapon (club, knife, chain, etc.) would too.

Rmeju
May 19, 2011, 04:06 PM
Try to remember it this way:

The law tells citizens that they cannot kill unless they had a "reasonable" fear of death or GBH to themselves or someone else.

The court tells jurors to figure out if someone doing XXXX to you makes your subjective fear of death or GBH "reasonable".

The key here is--what do those 12 individuals think? Obviously the worse XXXX is, the better your chances of a favorable outcome (the best being non-prosecution). Since, of course, nobody knows the answer to that question, the general advice you get is to not shoot unless you really believe there's no other way to get out of the situation in one piece. Once you really believe that you'd rather roll your dice with a jury who may (or may not) be sympathetic to your circumstances rather than taking your chances with XXXX, that is when you can pull the trigger.

Don't forget, you will answer for your actions, even if you were in the right. That's why the experienced guys on here will tell you they hope never to be stuck with that kind of a catch-22.

Friendly, Don't Fire!
May 19, 2011, 04:16 PM
"Am I justified, in the state of Florida"
Only an attorney could tell you that and unfortunately, only a Jury could really tell you for sure, but it would be AFTER THE Fact! I use the phrase "when in doubt, Don't!"

If in doubt about pulling your weapon because it may be borderline-legal or illegal, I would hesitate and see how things work out. If the guy is Michael Tyson, you best believe I am not going to let him take one punch to my head.

Kleanbore
May 19, 2011, 04:24 PM
Posted by Leadhead: What's the point of carrying if you can't use it? I'm not sure what that means.

If you un holster a gun and present it to stop violence without actually shooting that would seem like an ideal outcome.It is--as long as your presentation of the firearm is justified under the law, or at least is not found to have not been justified.

Obviously if you shoot someone you will have to defend your actions in court.Not necessarily--if the evidence at the scene and the testimony of eyewitnesses strongly indicate that the shooting (or the presentation of the weapon, for that matter) was justified under the law, the charging authority may decide to not pursue charges.

Either way--draw, or draw and fire if shooting remains immediately necessary after the firearm has been presented--justification requires (1) the reasonable belief that doing so was immediately necessary to defend against imminent danger as described above, and (2) at least some evidence that supports that belief.

Should you have to draw, and you do not want to do that unless you absolutely have to, it is important that you be the first to report the incident. Should someone else report it first, your defense of justification may well be handicapped.

M-Cameron
May 19, 2011, 04:29 PM
it is important that you be the first to report the incident. Should someone else report it first, your defense of justification may well be handicapped.
while i agree with that statement....because thats exactly what i would do...

...however, i have heard from a few LEOs that it really doesnt make a difference if you are necessarily the first person to call the police.......

Kleanbore
May 19, 2011, 04:54 PM
Posted by M-Cameron: i have heard from a few LEOs that it really doesnt make a difference if you are the first person to call the police.......It really shouldn't matter. But--consider the realities.

In most metropolitan areas, police calls are rather frequent, and manpower and time are not in excess supply. They need to wrap things up without undue delay. So--if officers are called to investigate a brandishing or aggravated assault charge, and they have descriptions of the suspect and the weapon, and you and your firearm meet those respective descriptions, the evidence that they have have gathered will corroborate the original report, and they will have much of what will be required to pursue charges. You will then present your side of the story, which may well be what just about everyone would say and what the officers already expect, and you will be on the defensive.

If, on the other hand, you are the first to report the incident and you do so immediatly, (1) your description and that of your firearm will have little importance in the case, (2) you do not start out on the defensive, and (3) your credibility "going in" should be at least somewhat enhanced.

See this sticky (http://www.thehighroad.org/showthread.php?t=589272) for more on the subject.

One-Time
May 19, 2011, 06:59 PM
Depends on the situation, in Florida you may use deadly force(a drawn weapon even not fired is deadly force in Fl.) to stop a forcible felony, as well as in fear of your life or the life of another etc

If they had knives bats bottles etc, yes, just hands, well so long as you were afraid for your life or the life of an other youd be GTG as the state has to prove otherwise, the burden of proof is on the state

mljdeckard
May 19, 2011, 07:06 PM
When you are there in the situation, you are the one who knows if you really feel your life is in danger. 'Getting hit by a stranger' is way too broad to say what force, if any, is justified. The person may be acting very aggressively and hit you very hard. It might just be a drunk guy, he hit you, not knowing who you were, didn't hit very hard, and fell over in the process. The second guy certainly doesn't deserve to get shot.

Shooting to defend a third party is a whole new can of worms. There is a VERY short list of third parties for whom I will use deadly force to defend. Lifelong friends and family members who also carry, and we have cross-trained on each others' weapons. I suppose these are also the people I would be likely to be walking down a street with.

thump_rrr
May 19, 2011, 07:08 PM
What's the point of carrying if you can't use it?
If you un holster a gun and present it to stop violence without actually shooting that would seem like an ideal outcome.
Obviously if you shoot someone you will have to defend your actions in court.
A gun is not a magic wand.
It is a tool which can be used in many ways.
Using your thinking a guy punches your friend in the face. It hurts him but it is not debilitating.
At that point there is no indication that your friends life is in danger. If you pull out your gun in an attempt to frighten the other party someone else in his party may pull out a gun and shoot you because they will definitely be in fear for their friends life since you're holding a gun.

A gun should only be used as a last resort. If you pull it out be prepared that you may have to use it and suffer the consequences.

Yarddog
May 19, 2011, 07:48 PM
"[If a reasonable person, from a subjective standpoint, could determine that being drug from their car could lead to immediate serious injury or death, then yes.]"


NO IF's Ands or Buts about it (Kidnapping) is FELONY ; )
Y/D

Owen Sparks
May 20, 2011, 12:42 AM
Any unarmed attack is potentially deadly. Several boxers have been killed in the ring by being punched with 12 oz gloves! A good punch will leave you stunned and totally at the mercy of your attacker who may choose to punch you again and again until you are unconscious, then he may easily stomp on your head and neck until you are DEAD! Do not bet your life on the good intentions of your assailant. Assault is not a sporting event. You did not choose to participate and are under no moral or legal obligations to fight fair or give your attacker a "sporting chance".

fbernar
May 20, 2011, 12:55 AM
Whether you know a person or not does not enter into the legality, but what is actually going on may not be what you believe you see. Would you really want to shoot people who are trying to arrest a felon, or who are defending themselves against a violent criminal actor? Have you considered how your story may not be consistent with all of the other testimony if you have intervened in an act of domestic violence?

Normally a group of people don't jump and assault someone that is walking down a street even if trying to stop a criminal (because he is just walking). Also, how are they defending themselves against a criminal if THEY jumped him?

I'm not asking if I can SHOOT someone if this all occurs. My question, and it is in the topic, is am I justified in DRAWING my weapon to stop violence. Once you are getting punched in the face it is too late. Be honest with yourselves. If you are getting wailed on in the face you are most likely NOT going to be pulling out your gun. Your body is in shock basically once hits are being landed and full connection is occurring.

shiftyer1
May 20, 2011, 02:10 AM
Someone stated random attacks rarely occur, what is considered a random attack. A semi-friend of mine was out with his wife over the weekend and when in the bathroom was attack by 3 guys. It started with a sucker punch and ended with a bunch of boots to the head. Turns out one of them was an ex boyfriend of his little sister. He had never had any words or problem what so ever with the guy.

The days of a fair fight are coming to an end it seems. Please don't convince yourself that it's rare. Or maybe it is, just not around here!

I'm not sure of the legalities but in his situation I think i'd grab whatever I could.

Leadhead
May 20, 2011, 03:32 AM
I guess it makes some sense to discourage people from presenting their guns at every bump in the of life but if someone was coming at me or my friends/family with unprovoked ill intent I'd have a hard time keeping it holstered!

I guess that's when you need to alert the other party that their actions are threatening and ask them to stop.

thefamcnaj
May 20, 2011, 04:09 AM
The gist of it is, you're going to get in trouble if you shoot someone, even if the law clears you.
I don't understand how you could get into trouble, even if the law clears you. Do you mean a civil case brought on you by the family members of the person you shot in self defense?

Kleanbore
May 20, 2011, 09:05 AM
Posted by thefamcnaj : Normally a group of people don't jump and assault someone that is walking down a street even if trying to stop a criminal (because he is just walking). Also, how are they defending themselves against a criminal if THEY jumped him?The problem is that if you do not know the individuals and if you do not know what has already transpired, what you may perceive--for example, if you assume that you would be justified in defending someone--may not match reality. Someone attempting to subdue a violent felon for the purpose of making a lawful arrest may look a lot like someone attempting to beat him. Probably more likely is the situation in which one person is striking another, a third person intervenes with the best of intentions, and the first two accuse the third person of having attacked both of them. That happens with some frequency.

I'm not asking if I can SHOOT someone if this all occurs. My question, and it is in the topic, is am I justified in DRAWING my weapon to stop violence.Yes, that was the question and it is in the topic, but see Post #16, which you must have missed:

Note that in your jurisdiction (as in most) you may not lawfully draw your weapon unless you are justified in actually using deadly force.

That does not mean that you have to fire if you have drawn, because the circumstance that initially justified your use of deadly force, and therefore your presentation of a weapon, may change very quickly after you draw.

You asked about legality, but let's introduce another aspect of reality into the equation. Let's add to your original question, "can I draw if I see someone who is about to shoot someone I do not know"?

Again, the answer may be yes, but it may not be a good idea for you to do so. Consider this: you see some kind of an altercation and you draw your gun with the idea of intervening. . A fourth person who has just arrived on the scene sees you pointing a gun at someone else, and believing that you are about to kill that person or that you are committing a robbery, he shoots you. You might consider it a bit ironic that he just might prevail in a defense of justification, based on his ability to present evidence indicating that he had a reasonable belief that you had constituted an imminent threat of death or serious bodily harm to someone else, or that he had been trying to prevent a forcible felony..

In most states, the law permits the use of deadly force when there is cause for a reasonable belief that it it is immediately necessary to defend a third person from death or serious bodily harm, or to prevent certain forcible felonies, but there are limitations that vary by jurisdiction. Consult a knowledgeable local attorney.

In only one state does the law specify that it may be permissible to draw a gun to stop violence in some instances in which the use of deadly force is not justified.

If you ever consider using your firearm to defend a third person, make very sure that you know all of the circumstances before doing so, and make sure that you do everything possible to avoid injuring bystanders. Carrying a gun does not make one a sworn officer with the duty to enforce the law and with indemnification against civil liability, and even sworn officers dread having to intervene in cases of domestic violence.

Sebastian the Ibis
May 20, 2011, 09:52 AM
I Florida:

s 776.012 Fla. Stat.: Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.

s 776.08 Fla. Stat.: Forcible felony.—“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0776/0776ContentsIndex.html&StatuteYear=2010&Title=-%3E2010-%3EChapter%20776

So to answer your question, The sucker punch is physical violence - probably felony battery if there its an all out punch by an adult and consequent injury. However, if after the punch if the guy runs away you are no longer "preventing" anything. On the otherhand the guy is kicking your buddy while he is down you would be preventing aggravated battery. If he took his wallet it would be robbery. You would need to make sure that the perps actions can be one of the above.

If someone tries to enter your car, you would probably be preventing a car jacking, or at least burglary (entering an occupied car with the intent to commit a crime therein), However you would be stupid to draw a gun when you could just drive off, even 124hp beats 124g JHP every time.

You would need to look at Florida case law to determine how these laws apply to specific fact patterns. The opinions are available on at the District Court websites. Links are available here:
http://www.3dca.flcourts.org/opinions/opinions.shtml

fbernar
May 20, 2011, 10:20 AM
Thanks Sebastian. You pretty much cleared it up. THat was ON POINT.

fbernar
May 20, 2011, 10:21 AM
Also thanks to everyone else. Like someone else said, Florida CCWL classes leave more questions UNANSWERED than it does ANSWERED.

God bless you all.

quatin
May 20, 2011, 11:09 AM
I really hate seeing people dismiss hand to hand fighting as "non-lethal". You don't need to get punched a several times to go unconscious, one good hit to the chin, temple, behind the ear or back of the head will put you to sleep. One hard hit to the liver or the kidney will leave you unable to control your body. After that, you're defenseless. You are completely at the mercy of your attacker. He can stomp on your head or pull out a knife. All of this can take place in seconds. Way faster than most people can react and draw a weapon.

If you care for your friend, you should react immediately. If your friend goes down, it's more important that you disable the threat or at least get between your friend and the attacker. Lying on the floor, your friend is one kick away from being paralyzed. I'll restate that if you fire a gun, no matter the situation, expect consequences. Florida allows several non-lethal weapons as another option. With a CCW you are also allowed to carry a collapsible baton. Mace would be the easiest to use without training. Batons would require some training and I don't mean those 1-2 day seminars.

Kleanbore
May 20, 2011, 11:21 AM
posted by Sebastian the Ibis: ...the guy is kicking your buddy while he is down you would be preventing aggravated battery. If he took his wallet it would be robbery. You would need to make sure that the perps actions can be one of the above.True...and that your action had been immediately necessary (no alternative).

And you would have to be able to provide evidence supporting your account of the event:


To avoid prosectution, you would have to be able to prove, via a preponderance of the evidence, tha your act had been justified; failing that,
...to prevail if you are in fact prosecuted, you would have to get a favorable jury instruction, and convince a jury that there was at least reasonable doubt about whether you were guilty of improper exhibition of a firearm and/or aggravated assault.


Here's the rub: witnesses may not see things your way, and if there is more than one person whom you thought to have been attempting felony, your testimony may not outweigh theirs.

Things things do not take place on a sound stage, with the scene arranged to ensure that an audience sees all the right things, and with instant replay. The outcome will depend entirely upon evidence and testimony that exists after the fact.

fbernar
May 20, 2011, 11:22 AM
I haven't really considered a baton, but it's a great idea.

I hope I do NOT offend anyone, but I grew up in Jacksonville and Orlando and as a Puerto Rican we are raised to think that people that conceal weapons are "punks". However, approaching marriage and soon to have a family I have realized it is not about being tough or a punk. It's about protecting what matters. If you asked me ONE YEAR ago if mace made you a chump I would have said yes. However, as I am getting nearer to my wedding and one day soon a family I have realized that it does not matter what people say. It is about keeping what matters safe above all else.

I really appreciate all the input you all have given me. You are all amazing!

Carl N. Brown
May 20, 2011, 11:23 AM
Depends a lot on the laws and court precedents in the jurisdiction, as much as the actual circumstances of the incident.

The rule taught me was don't threaten or use lethal force unless the circumstance is such that the theoretical "reasonable person" (think a district attorney, grand jury, trial jury or judge in the safety of a courtroom) would agree that they would be in fear of death or greivous bodily harm if they were in your shoes.

If the consequence is just a black eye, bloody lip or bruised ego, the gun stays in the holster.

Buck Snort
May 21, 2011, 12:11 AM
Cancelled.

Buck Snort
May 21, 2011, 12:35 AM
[QUOTE=shiftyer1;7321038] "Someone stated random attacks rarely occur................"

I don't think that's true at all. I think "random" attacks are the rule rather than the exception.

Owen Sparks
May 21, 2011, 02:10 AM
How many foot pounds of force does it take to render you defenceless of some thug decides to stick his thumb you in the eye? Anytime someone tries to put their hands on you in mallice it is a deadly threat and should be treated as such.

YOU DO NOT OWE A CRIMINAL A FAIR FIGHT!

No matter what goofy laws your states legislature passes.

fbernar
May 21, 2011, 02:12 AM
If the consequence is just a black eye, bloody lip or bruised ego, the gun stays in the holster.

The thing is, Carl, that when someone is attacking you you can't ask them, "Wait so are you just going to give me a black eye or busted lip or are you going to break something? Oh, just a black eye ok."

When you are being attacked you are being ATTACKED. You either make the decision to defend yourself from the get go or you don't know what else will happen. Like I and others have said, once an attack begins it becomes a lot harder to draw your weapon.

Owen Sparks
May 21, 2011, 02:21 AM
It is really not that hard to kill a man with your bare hands. All you really have to do is get him stunned with a sucker punch so that you can get him down and apply a few stomps to his neck. Of course there are several more advanced ways but this is the most common. Do not bet your life on the good intentions of your attacker. If he is cold blooded enough to attack you wothout provication he is probably cold blooded enough not to stop until you are DEAD! Some people don't have a concious.

Kleanbore
May 21, 2011, 09:08 AM
Just to introduce a little reality here....the fact that a punch can kill or cause serious bodily harm is not likely to get one very far at all in a defense of justification if one has threatened or used deadly force against someone who was not armed.

For those who aren't aware of it, that legal principle does not stem from votes in "liberal" or "antigun" or "goofy" state legislatures; rather, it is rooted in many centuries of tested common law that formed the original basis of the law in all of our states but one. George Washington was bound by those laws both before and after Virginia's independence from Great Britain. For that matter, that principle actually goes back thousands of years into Roman law and into eras preceding same.

As a matter of fact, long-standing common law also held that, to be justified in the use of deadly force in self defense, the actor would first have to attempt to retreat "to the wall" before using deadly force. That requirement preceded the advent of firearms, of course, and many, but by no means all, of our states now have laws that eliminate the duty to retreat. Florida is among them.

So, if one does threaten or use deadly force and his assailant(s) turn out to be unarmed, what are his prospects? Well, he has two possible defenses: he can try to show that he had reason to believe that the attackers did have a weapon, or he can try to show that the number or size or comparative physical abilities provided the attackers with a favorable disparity of force.

Read more about that in the section on Ability in this (http://www.armedcitizensnetwork.org/images/stories/Hayes-SDLaw.pdf).

The disparity of force argument may not be an easy one to win. There is a true story about an Arizona man who was attacked unprovoked by three people who were not armed; he tried to escape, though Arizona has a stand your ground law; he finally drew and fired as he was being brutally beaten. Larry Hickey ended up in jail for some months and in two criminal trials before finally being freed.

Read about it here (http://www.shastadefense.com/ArmedCitizenNetwork_2010-9.pdf).

That story will shed some light on this from Post #36: "I don't understand how you could get into trouble, even if the law clears you."

Larry Hickey was ultimately cleared, but he had more trouble than I have had in my lifetime.

Art Eatman
May 21, 2011, 01:58 PM
Study on these parts of Sebastian's post (and I thank him for it):

s 776.012 Fla. Stat.: Use of force in defense of person.—(Snip)However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony;"

Then:

"s 776.08 Fla. Stat.: Forcible felony.—“Forcible felony” means...aggravated assault; aggravated battery..."

Okay? Enough of this Philadelphia Lawyer's picking fly-poop out of pepper. From what I've read in articles from Florida newspapers and some other sources, folks who follow the above pattern as described in the law go through the usual post-event hassle but don't normally face criminal charges.

In the FWIW department, that also holds true for Georgia and Texas, as well. Maybe other places, but I have much less info about those.

fbernar
May 21, 2011, 02:35 PM
^Thanks!

sohcgt2
May 21, 2011, 05:45 PM
It's legal to meet force with force, it is not legal to escalate force.

Madcap_Magician
May 21, 2011, 06:12 PM
My first thought is that I teach concealed carry in Minnesota, and this is a common complaint about our class- that students are left in doubt as to when, exactly, they would be legally justified in drawing their firearms.

Unfortunately, this is largely a matter of case law and individual circumstances, and as such, there is no good way to answer the question. The only real answer is... it depends. It depends on relevant case law, the circumstances of the threat/use of force, the jury, etc.

What I usually tell students is that if a situation is bad enough that it's more important to you to stop the situation from continuing than it is to consider any future consequences, then it's probably bad enough to justify the threat/use of lethal force. And even then... only probably.

The second thought is that a ton of people have a great deal of confusion about the difference between the THREAT of deadly force and the USE of deadly force.

IANAL, but in my state you can use the threat of deadly force to defend yourself from a personal assault, but you may not be justified in the actual USE of deadly force at the instant you decide to THREATEN deadly force.

The significance of this is that when you are assaulted, you are not obligated to leave your firearm in the holster until you're 100% sure you're going to die.

More importantly, you are not obligated to FIRE your firearm if you draw it.

Kleanbore
May 21, 2011, 06:36 PM
Posted by Madcap_Magician: ...in my state [(Minnesota)]you can use the threat of deadly force to defend yourself from a personal assault, but you may not be justified in the actual USE of deadly force at the instant you decide to THREATEN deadly force.Thank you for that. That is also true in Texas. There is a more limited provision in the same vein in a relatively new Arizona law.

One could debate the pros and cons of that--in fact, the Arizona law, which provides for the defensive display of a firearm under certain circumstances when deadly force per se is not justified, was vetoed the first time through. I like the idea, but it is important for our members in other states to know that most states do not have that provision.

The significance of this is that when you are assaulted, you are not obligated to leave your firearm in the holster until you're 100% sure you're going to die. ... that is, in the holster until deadly force is justified, for whatever lawful reason; e.g., prevent the imminent commission of a forcible felony, in many states.

More importantly, you are not obligated to FIRE your firearm if you draw it.That is true everywhere.

Zoogster
May 21, 2011, 07:53 PM
Art said: Study on these parts of Sebastian's post (and I thank him for it):

s 776.012 Fla. Stat.: Use of force in defense of person.—(Snip)However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony;"

Then:

"s 776.08 Fla. Stat.: Forcible felony.—“Forcible felony” means...aggravated assault; aggravated battery..."

As I said earlier the law is far from the only important aspect. Clear violation of the law is likely to result in successful prosecution if you claim self defense (an admission of guilt, making it that much easier to prosecute if the legal requirements were not met.)
But completely following the law only means you might not be found criminally guilty against an unarmed man in self defense.

The jury gets a lot of discretion, and much of society views a simple unarmed attack as no more harmful than two boys fighting in the school yard.
It may not be true, but it is a fairly common perception.

In reality the truth is that once you are unconscious, you lose your say in events after that point. Whether they choose to stop, stomp or kick you to death (and a head over concrete cannot take much), or as is common in thug robberies pat you down or go through your pockets at which point they would be likely to find your firearm...you have no say.
Your options and ability to exercise them may end at any moment from any single blow unexpectedly. But you don't know when or if that will happen, and there may be nothing in between the initial attack and that point that would satisfy a jury that lethal force is necessary.
That means any lethal force against an unarmed person, especially by a healthy young male, will have a lot of jury discretion to determine whether the actions were those of a "reasonable" person.
That is the gist of it, the jury gets to determine if you acting in accordance with "He or she reasonably believes". If your belief is found unreasonable, because in some jury members' eyes it may not have been necessary, you lose your claim of self defense.

So all sorts of random and seemingly unrelated things can become important in their discretion that may not factor in if they were armed and attacking you. Things far outside the scope of what the simple text of the law says. I gave some examples of such things in my prior post, which can change the determination of guilt in the jury members' minds. Your age, your health, standing in the community, character, any past problems, were you greatly outnumbered, was the attack from people you knew or not (motive is important in deciding if it was murder), did you engage in a verbal argument before the attack or exchange other hostile words, etc etc
The list is endless when the self defense is not black and white and a jury gets to decide if your lethal armed force was "reasonable" against an unarmed threat.


Now what Art as a wise old man being attacked by some young punks could get away, and the level of sympathy they would get from a jury could be completely different than what a young 20 something whipper snapper could get away with in front of the same jury. :neener:
The law is as a result not a level playing field, and what works for one may not work for another.
So the correct answer is always "depends".

JDMorris
May 21, 2011, 08:08 PM
If the person is in similar size to you I think the first move should be a punch...

Zoogster
May 21, 2011, 08:19 PM
JDMorris said: If the person is in similar size to you I think the first move should be a punch...

Want to hear a really sad part about that though?
You may be considered a mutual combatant exchanging blows, grappling, and otherwise in a fight.
If determined to be a mutual combatant it then turns future escalation of force into an illegal act.
It would be another one of those news stories where a bad guy pulled a knife, gun, etc during a fight on the other guy. Only you would be that bad guy.
It is quite likely you or who you are with will have very different versions of events from them and who they are with.
It is not even as important as who threw the first blow, if it is considered mutual combat then the legal defense of "self defense" may cease to be valid.

If prior words were said, or someone challenged someone or said words likely to incite a hostile response before turning and walking away, then the resulting melee could be considered mutual combat.
What actually happened may also not be entirely clear to the jury, and so just because you know you were legally justified does not mean they will not buy into or partially believe a conflicting account from the attacker or their buddies.

Even if it works and there is no escalation or need for a gun or additional force, it can result in charges against both involved in the fight when police arrive. Letting the court and conflicting stories determine who or if both sides involved are found guilty of the charges for fighting in court.

withdrawn34
May 21, 2011, 08:42 PM
It really depends. I don't know why some people get frustrated at the lack of a clear-cut answer, since there are rarely clear-cut situations in real life.

To be honest, I can't imagine this scenario actually happening. Maybe a gang of rowdy youths might decide to start randomly wailing on you or your friend. I have heard of that happening, with sometimes death being the result. In that case, yes, I would draw, but may or may not shoot. I am outnumbered, and who knows if someone has a small knife on them. If I had OC spray I'd start dousing immediately, with no warning.

Buck Snort
May 21, 2011, 11:10 PM
It's legal to meet force with force, it is not legal to escalate force.
I don't think that'll wash. If I'm assaulted by a larger man or men then drawing my weapon to defend myself most certainly constitutes an escalation of force, albeit a necessary one.

LKB3rd
May 22, 2011, 10:11 AM
I am not a lawyer, take my $.02 for what it's worth:

In CT, "disparity of force" would come into play. If the fight is clearly unbalanced against you, like more than one attacker working together, or a man on a woman with a clear size disparity, and they are in the process or have shown ability and intent to cause "great bodily harm" or death, you would be justified. As pointed out in other posts, a lot can happen between such an incident and a jury seeing it (which hopefully they wouldn't if the above was the case), and it isn't a bad idea to imagine the worst possible spin for you being put on it, and make sure your decision can stand up to that.

Kleanbore
May 22, 2011, 10:27 AM
In CT, "disparity of force" would come into play.Does anyone know of any jurisdiction in this country in which that would not be true?

Sebastian the Ibis
May 22, 2011, 05:07 PM
fbernar-

Take a look at Jenkins v. State 942 So.2d 910 (Fla. 2d DCA 2006). (http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2006/October/October%2011,%202006/2D05-1780.pdf) (available at: http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2006/October/October%2011,%202006/2D05-1780.pdf, if hyperlink does not work)

Here a Florida Appellate Court actually examines the use of deadly force in response to a punch, and reversed the trial court and ordered Mr. Jenkins be acquitted.

Please note that the events described herein transpired in 2004, prior to the 2006 "stand your ground changes" in Florida Law, and the court applied the 2004 law which which formerly read:

“A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against such other's imminent use of unlawful force. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”

The current version I previously cited is more favorable to self-defense.

Also note, as I am sure the poop pickers will point out, Mr. Jenkins still had to deal with arrest, prosecution, trial and an appeal before he was ultimately acquitted. I am sure he would have preferred to stay in a trailer and not deal with this. Also, note that Mr. Jenkins did not turn himself in until several days later, so no statement was made until he had a chance to clear his head, collect his thoughts and possibly speak with an attorney. If you find yourself in this situation - STFU, STFU, STFU, STFU and don't say anything, people on an adrenaline rush talk themselves right into jail.

Art Eatman
May 23, 2011, 12:34 AM
As far as probabilities, consider the eight or so articles every month in the American Rifleman/Hunter's "Armed Citizen" newspaper clips where citizens have had to use deadly force. Over and over, issue after issue, year after year, there is some reference to an official statement about "...justified...no charges..."

So, yeah, every situation is different. But if you tote, you're supposed to have studied the law ON YOUR OWN! Add some common sense and pragmatism to that knowledge and odds are you'll do okay.

fbernar
May 23, 2011, 01:10 AM
I don't know that hiding out and turning yourself in days later really helps your case. @_@

Zoogster
May 23, 2011, 05:59 AM
As far as probabilities, consider the eight or so articles every month in the American Rifleman/Hunter's "Armed Citizen" newspaper clips where citizens have had to use deadly force. Over and over, issue after issue, year after year, there is some reference to an official statement about "...justified...no charges..."


To that I would say they obviously pick cases of clear self defense that were not as discretionary as many to highlight citizens defending themselves.

In self defense cases that are challenged they don't typically get reported as "self defense" by the media, because the press release or information given by police is something along the lines of some people had an altercation, and one shot/stabbed etc the other.
That case may then go to trial, and a long time later if the person was found to have acted in self defense and wins their defense the media never picks up on it because it is old news, unless it was a high publicity controversial case earlier on they are updating.
This means no official media source mentions it as self defense initially, and maybe never. So it's not one of the cited self defense stories.

The majority of clear cut self defense cases reported as self defense from the start are home invasions and store robberies. Where what took place is a lot clearer from the start. These are the type of cases presented as the ideals in pro-gun magazines and articles, where the perception of the defender is positive from the start.

Location also matters. In one rural part of the state it may initially be considered self defense and make it into the news as such to be cited, yet near Miami it may initially be reported as a fight turned deadly, where X has been charged. The self defense angle never becoming clear to the public, and the trial where such details are exposed not followed.
The LEO and district attorney of the area play a huge role in initial perception of events and how a case is in turn presented to the media while it is still fresh and they care about the details.
Then of course there is people that lose their legitimate self-defense claims, we call them criminals and those incidents are never cited or known as self-defense incidents.
Many of the Harold Fish type cases never make the news, irregardless of the eventual outcome.
In fact had that specific case not been a highly public case he would most likely have remained in prison just another criminal serving his sentence for a crime he was tried and convicted of. It was only the high publicity that resulted in a demand for change and combined with other factors for his eventual release.


So this all creates a perception bias when you read about self defense. You read primarily about the clearest and most straight forward cases. A percentage of the total.

Art Eatman
May 23, 2011, 10:39 AM
Zoogster, if you go back to the opening post, isn't he talking about clearcut cases?

Florida. No duty to retreat. Minding own business. Felonious assault offering serious bodily harm. Sebastian's cite is applicable. If you follow Florida news very much, it's high odds that he would be okay with the legal system, based on past history.

Kleanbore
May 23, 2011, 11:22 AM
Posted by Art Eatman: ...if you go back to the opening post, isn't he talking about clearcut cases?Of course the cases described by the OP may be clearcut, or they may not. Someone started attacking his friends, unprovoked.

The problem in these things, as in the Larry Hickey case, is that the investigators, the charging authorities, and the courts have to decide on the basis of not only the testimony of the actor and his friends, but also on the basis of the testimony of the other parties, and if anyone else saw anything, on their accounts, which may be incomplete or downright distorted--plus forensic evidence or the lack thereof.

If the preponderance of all of the evidence were to indicate that the alleged felonious assault had probably occurred, there would be no prosecution permitted in Florida, or in many other jurisdictions. However, the account given by the actor alone would not likely suffice. "We were minding our own business"; "he started it when..."; "I saw four people fighting and that man drew a gun and joined one side"; "I did not see the beginning of the altercation"; "we found no weapon"; "the injuries to the other parties were more severe" and so forth will all be weighed.

From that standpoint, altercations that occur on the street, particularly when one party is not armed, are usually nowhere near as "clear cut" (to those who must judge) as incidents that take place in the kitchens and bedrooms of armed citizens.

The answer to the OP's first question is "perhapsd, but the evidence had better support your account".

Sebastian the Ibis
May 23, 2011, 12:17 PM
The problem in these things, as in the Larry Hickey case, is that the investigators, the charging authorities, and the courts have to decide on the basis of not only the testimony of the actor and his friends, but also on the basis of the testimony of the other parties, and if anyone else saw anything, on their accounts, which may be incomplete or downright distorted--plus forensic evidence or the lack thereof.

There ain't nothing you can do if the neighbor/witness, the responding officer or the prosecutor has a vendetta against you except go to trial. However, if your choices are death or roll the dice with the criminal justice system everyone on this board is going to take the later. It is not very productive to say "the law says you get off, but you might get framed by your ex-girlfriend who hates you and says she witnessed everything, so you should be careful."

I don't know that hiding out and turning yourself in days later really helps your case. @_@

It did because he did not make a statement to the police immediately. It would have been better if he stuck around and invoked his right to silence, but its a hell of a lot better than if he blabbed to the police. What is a homicide detective going to do when he arrives on scene and the perp. (Jenkins), with priors (he was sentences as a repeat offender) is sitting there next to a stabbed body with his bloody knife (the murder weapon)? The detective is going to put on the full court confession press and get Mr. Jenkins to admit that, A. He wanted to kill the real perp. B. He chased after him, & C. twisted the knife, thus eliminating all the evidence Mr. Jenkins put on later. I'll bet my paycheck that Jenkin's attorney assisted him with the final version of events at trial, he didn't come up with it himself. If Jenkins had given an initial version of events to the police he would be locked into it, and the attorney could not help him with it. Thats why the most important thing you can do is STFU.

quatin
May 23, 2011, 12:40 PM
To be honest, I can't imagine this scenario actually happening. Maybe a gang of rowdy youths might decide to start randomly wailing on you or your friend. I have heard of that happening, with sometimes death being the result. In that case, yes, I would draw, but may or may not shoot. I am outnumbered, and who knows if someone has a small knife on them. If I had OC spray I'd start dousing immediately, with no warning.

Exactly. There's too much legal crap about firearms that prevents you from using it in the vast majority of defensive situations. There's also a negative public image of guns/knives being criminal weapons. If you're young and in shape, you can forget about it. They're going to ask, why didn't you run away, why couldn't you have pushed him off and etc. If you heard of the Gerald Ung case, it was an unarmed criminal versus an armed defender. The prosecutor had the nerve to ask "Why didn't you just cross the street?", and amazingly the jury later admitted that was a factor for consideration.

The restraints for OC and other non-lethal weapons is less stringent and the risk of consequences much less. With a firearm, you have to wait for "reasonable belief of imminent harm", which is often too late to act. In situations like this, I would exhaust all non-lethal force options and probably still never draw a gun, because it's not my life on the line.

MrsSmith
May 23, 2011, 01:25 PM
Couple things. You can sit here all day and dream up possible scenarios that COULD happen in which you might or might not be justified in the use of deadly force. But it doesn't really sound like you've had a great deal of training in those types of situations. Not saying you can't shoot, but shooting at the range and handling a situation that comes on suddenly in a public venue are two different animals. I agree with the others who recommend non-lethal weapons in this instance.
The real question here isn't "would I be justified." The real question is, "Am I sufficiently trained with a firearm (both physically and emotionally) to handle situations that may arise?" And if the answer is no, then you need to either take some serious classes (tactical, CQB, home defense, etc.) or consider other alternatives. Please don't misunderstand, I'm not advising you against gun ownership or CCW, I'm advising more extensive training than a CCW class is going to provide. With rights (RKBA) come responsibilities and if we're going to carry, we have a responsiblity to learn to use a weapon efficiently and effectively.

fbernar
May 23, 2011, 02:03 PM
Couple things. You can sit here all day and dream up possible scenarios that COULD happen in which you might or might not be justified in the use of deadly force. But it doesn't really sound like you've had a great deal of training in those types of situations. Not saying you can't shoot, but shooting at the range and handling a situation that comes on suddenly in a public venue are two different animals. I agree with the others who recommend non-lethal weapons in this instance.
The real question here isn't "would I be justified."

The real question seems to have been missed by you and others. At no point am I asking can I shoot, should I shoot, what happens if I shoot? My question was DRAWING. Shooting is not part of my question. Thanks.

fbernar
May 23, 2011, 02:04 PM
I do agree though with people talking about OC spray and the such versus shooting or something else. I was asking though about drawing, not hitting or shooting or spraying. I think we kind of went off topic, but I really appreciate all the feedback from each and every one of you. :)

quatin
May 23, 2011, 02:24 PM
Technically, you're OK to draw and shoot, because he did commit felonious assault. The problem with drawing is, if you draw you should be prepared to shoot. Otherwise, you've escalated a situation by introducing a firearm. If the guy leaves, great, but what if he calls your bluff?

Kleanbore
May 23, 2011, 03:41 PM
Posted by Sebastian the Ibis: There ain't nothing you can do if the neighbor/witness, the responding officer or the prosecutor has a vendetta against you except go to trial.I wouldn't rank the possibility of a vendetta very high among the risks.

The best prosecutors and officers must enforce the law on the basis of the evidence that they can gather. If one draws a gun and points it at someone else absent lawful justification, it is a crime, and in Florida there is a mandatory penalty for that crime. Mounting a defense of justification requires evidence.

Even the most unbiased witness testimony can be wrong. If a witness did not see the initial attack, but only turned to see the actor seeming to threaten someone else with a deadly weapon, that testimony will not be very helpful at all. No vendetta is required.

The relevant Florida statute (and those of some other states) contains a provision that protects the actor against prosecution if the threat or use of deadly force was lawfully justified. If the actor is able to convince a judge on the basis of a preponderance of the evidence that he or she was justified in drawing his firearm, prosecution cannot lawfully proceed.

Should the actor not be successful at that stage, the prosecutor will decide what to do next. If the prosecutor believes that the evidence will show the actor's guilt beyond a reasonable doubt, he or she will likely proceed. If the actor can present at least some evidence in support of justification, he will receive a favorable jury instruction, and it will then be up to the prosecution to prove that the evidence shows beyond reasonable doubt that the defendant was guilty.

Thats why the most important thing you can do is STFU.True unless your defense will be one of justification. See this (http://www.thehighroad.org/showthread.php?t=589272).

Posted by fbernar: The real question seems to have been missed by you and others. At no point am I asking can I shoot, should I shoot, what happens if I shoot? My question was DRAWING. Shooting is not part of my question. Thanks.One more time: in most states, including yours and mine, you may not lawfully draw unless you are justified in shooting.

Owen Sparks
May 23, 2011, 04:09 PM
Unless you move first, you can not draw and shoot a concealed pistol faster than the average man can throw a punch, even if he starts several yards away. This was actually proven in court a few years back where the subject was a policeman attempting to draw from an open service holster before someone could cover seven yards.

Zoogster
May 23, 2011, 06:07 PM
Art: Zoogster, if you go back to the opening post, isn't he talking about clearcut cases?

Not necessarily.
As kleanbore mentions there is a lot of variation in witness statements, even uninvolved witnesses often first look after some commotion has drawn their attention, and so what they see at that point can bias them against the defender failing to see the start of events.
While the buddies with the initial attacker are often going to lie to benefit their version of events.
So you have multiple versions of what happened, by both the attacker's group and uninvolved witnesses, along with a different version from the defender.


One big thing I would point out beyond what kleanbore mentions is that many posts in this thread refer to a felony being committed by the initial attacker. Such as those referring to "felonious assault".
But the attacker has likely committed no felony initially.
First of all "assault" is the threat of force, and so a felony version typically involves a threat with a weapon. (Like pulling a gun when unjustified on another person but not using it would be a felony assault.) The case in question involves someone coming up and punching someone, there is no threat of force even used, and a threat to punch would be a misdemeanor assault.
Battery is the use of force which is the correct term that would apply here, and it requires certain things to enter into the felony realm to become 'aggravated battery' under Florida law:

In most cases a simple punch, especially against another healthy young male is a misdemeanor, unless serious injury results.
An unarmed attack may discretionarily be charged as a felony in some cases, or a misdemeanor, and typically only reaches the felony stage by the time someone is being seriously beaten or kicked/stomped/kneed on the ground, or suffered other serious or permanent injuries.
So it is not someone committing a 'forcible felony' by any assured measure of the law when they come up and punch someone else.
That removes the 'forcible felony' justification for use of deadly force and only leaves 'reasonably believes that such force is necessary to prevent imminent death or great bodily harm'.
So a jury gets to decide if such action was "reasonable". If the belief at that point of great bodily harm or death was reasonable, or if only the use of normal force was reasonable at that point and not deadly force.

The fact that they are traveling together also makes the argument of a clear disparity of force more difficult than if the person was alone when attacked.


One of the things that often makes it difficult to use a gun against an unarmed threat is that the point a simple misdemeanor battery turns into a forcible felony is when it meets the definition of aggravated battery in Florida.

Now a quick search for the definition of "aggravated battery" as defined in Florida law:
http://www.justiceflorida.com/2008/10/articles/florida-law-regarding-aggravat/what-is-the-crime-of-aggravated-battery-in-florida/

A person can commit the crime of aggravated battery in one of three ways in Florida. If a person, while committing the crime of battery:

1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement of another person; or

2. Uses a deadly weapon; or

3. If a person who was the victim of a battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant, then the offender may be guilty of the crime of aggravated battery.

Well he is not pregnant, and even if he was the attacker likely wouldn't have known, no deadly weapon as defined by the law was used by the attacker, no permanent disfigurement or disability has clearly been caused yet, and "great bodily harm" is rather ambiguous but not likely at the start of the attack.
What this means is that especially lone individuals being attacked are not certainly facing a 'forcible felony' from an unarmed attacker until they are likely in a condition where drawing or using a firearm would be difficult or impossible. While someone coming to the defense of another would need to witness something defining an aggravated battery, like the other person being kicked or stomped on the ground before knowing they are witnessing a "forcible felony".

So 'forcible felony' is out, and you are left with the much more discretionary:

776.012 Use of force in defense of person.
A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against such other's imminent use of unlawful force. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another, or to prevent the imminent commission of a forcible felony.

A jury will decide how reasonable it was.
So he may be justified, but it certainly is not a clear cut case for outsiders who were not present and are faced with different and sometimes conflicting variations of the story to determine.

Such a case would likely be presented to the media in a way that described two sides in some sort of fight, where one side shot the other and has been charged.
Thus never making it to the "armed citizen" type columns, because it would be at the trial many months later when it was no longer fresh and news worthy where it might be determined to be self defense. That is why home defense and defense during business robberies dominate such pro-gun columns, they sound good from the start, while many other stories have the defender initially sounding like just another bad guy.
The op's type of case often have "drunken brawl" (were the victims enjoying a night on the town when attacked?), "road rage" (was an argument over a vehicle or pedestrian right of way or a fender bender proceeding the attack), or other bad sounding tags added to them in the media based on the context, causing a normal person not to even recognize them as a self defense case.
Women and the elderly are more likely to get a better initial benefit of the doubt and news friendly story, but the OP sounds like a scenario of two young men.

Owen Sparks
May 23, 2011, 10:43 PM
Bare hands are potentially deadly, so is pavement. A guy near my town died as the results of a single punch in the face. It was determined that the punch only knocked him out. It was his head hitting the pavement that actually killed him as he was limp and unconcious so he did not tuck his chin when he fell. Boxing rings are padded for a reason. Another man tried to pick a fight with the local Karate black belt and lost an eye to a single punch.

Zoogster
May 23, 2011, 11:50 PM
Owen Sparks said:
Bare hands are potentially deadly, so is pavement.

You will see no argument that bare hands are deadly from me, but it is the perception of society and the jurors that matters.
As I mentioned in an earlier post it is the perception of much of society that bare handed fights are like those on a school yard between kids and as a result are not deadly force, and so reacting to it with deadly force is excessive.

Owen Sparks
May 24, 2011, 01:24 AM
Being punched is sort of like having something put in your drink. It probably will not kill you or even do any long term damage but the result can leave you temporarily vulnerable to whatever your asailant wants to do to you. This is a deadly threat.

The thing that makes bare handed fights so dangerous is the fact that there is no referee to step in and stop it once your opponant gets you down and hurt and you are totaly at the mercy of your attacker who may not stop.

fbernar
May 24, 2011, 01:30 AM
Check this out! This happened here in Orlando! This man drew his weapon to stop a breakin and robbery in his NEIGHBORS house! He is not in trouble and is getting praised by the local news!

http://www.wesh.com/news/27995001/detail.html

NEW SMYRNA BEACH, Fla. -- A Volusia County man said he noticed his neighbor's home was being burglarized Saturday, so he chased down the burglars with his own gun and held them for deputies.
"If they didn't act crazy, like they did, I probably would have pulled out and just kept going," the neighbor said.
Click Like For Central Florida News Updates:
The neighbor, who asked not to be identified, said he was going to dinner when he saw a man and woman carrying big-ticket items out of a home in the Eldorado Estates Mobile Home Park.
The neighbor said Katie Gravitz and Devon Ramsey, both 18, panicked when they saw him and nearly hit his vehicle with theirs. He followed them out of the neighborhood while on the phone with 911. He eventually cornered them.
911 Operator: Does anybody have any weapons?
Neighbor: Yes. I got one right now.
911 Operator: What do you have?
Neighbor: I have a little pistol.
911 Operator: OK. You got it out?
Neighbor: I got it in my hand.
The neighbor said he never pointed the pistol at the suspects, but he had it out to show he meant business, particularly when he said Ramsey came toward him in a threatening manner.
"I just kind of pulled my gun out and put it on my side and said you need to back off, and he immediately (saw) it and started backing off," the neighbor said.
Investigators said the burglary victim, David McGuire, had been letting an old friend who had fallen on hard times stay with him last week.
Officials said the friend, who was identified as Jennifer Jones, set him up. They apparently got McGuire out of the home, and according to deputies, gave the teen suspects a key.
A third person is still being sought by authorities, but none of them counted on an alert neighbor.
911 Operator: I'm trying to get a deputy to you, but I want you to try to just just calm down a little bit. I don't want anything to happen.
Neighbor: He's coming at me.
911 Operator: Just stand there by the car.
Deputies quickly arrived and made arrests. The neighbor said he would do it again, but he said he hopes he doesn't have to.
"I wouldn't want it to be done to me, you know. I mean everything I have I worked hard for," the neighbor said.

Zoogster
May 24, 2011, 03:56 AM
Yes but the cited article is a lot different. In a burglary who the bad guys are is clear. It was the people breaking into homes, just as in store robberies it is the armed guys demanding money, often with masks on. It is a no brainer who chose to create the situation and is victimizing others.
In Florida a burglary, even differentiated from the more violent home invasion robbery (officially a burglary in many states), is also a 'forcible felony'.
This means arming yourself or drawing a gun because you know a forcible felony is taking place is entirely justified under the law.
(Had he chased them down after they fled and then been forced to actually fire for some reason such as one turned on him an attacked him unarmed though it could have gone against him.)


In a street fight/attack such as in the OP with variations on the story they may never know who was the bad guy, or if they were both at fault one just escalated it further. Or they may figure it out much later, or a trial figures it out, hopefully the right way. There may be no clear forcible felony. In fact the person pulling the weapon if deemed unjustified would be the one committing a forcible felony, aggravated assault.

mboylan
May 24, 2011, 05:31 AM
The real question seems to have been missed by you and others. At no point am I asking can I shoot, should I shoot, what happens if I shoot? My question was DRAWING. Shooting is not part of my question. Thanks.

OK. The general rule is that you are not justified in drawing unless you are justified in shooting. Defensive display is a big legal can of worms that I would avoid unless truly in fear for my life.

hso
May 24, 2011, 08:18 AM
This is a completely hypothetical question
The general rule is that you are not justified in drawing unless you are justified in shooting. Defensive display is a big legal can of worms that I would avoid unless truly in fear for my life.

You can argue the number of angles waltzing in the head of a pin, but legally you must be justified to draw to avoid running afoul of brandishing laws and you must be justified in shooting to be justified to draw. Whether you shoot or not is a personal, ethical, moral, tactical decision the individual has to make.

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