Yes. And not understanding that is why Jerome Ersland remains in prison serving a life sentence for first degree murder.
Another excessive use of force
- Thread starter RPZ
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"...to take up the attack again"? Really? Do you really think that the use of deadly force would be lawfully justified to prevent that possibility?
Where on Earth did you get that idea?
Are you trying to argue that the use of deadly force would be lawfully justified simply because the "defender" did not know that another person lacked the ability and the opportunity to cause him death or serious bodily harm, or that the "defender" did not know that he was not in jeopardy?
old lady new shooter
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Thanks, that's what I expected.
9MMare
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I cant decipher your last paragraph but re: the first para...yes...I'm not a doctor, I cant even see his face (in this scenario) and his dropped weapon may be right at his feet. So of course I need to prepare for the possibility that he may be rearming himself if I dont STOP him. And he hadnt 'stopped' as far I could tell, before that 3rd shot. Not with another guy in the way.
And that is my opinion: no, I will not cut you a break or give you the benefit of the doubt if you try to kill me. Sorry if you find that offensive but I will not drop my guard and RISK my LIFE when YOU made the decision to try and take mine.
9MMare
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If at all possible, sure. If the threat is "STOPPED."
In this video...I can see a reasonable possibility, that the shooter may not have known the gravity of the shooter's wounds. He was still moving when shot (down, yes, but where was the iron bar he dropped?).
There was someone else blocking his access to the attacker's face. And that other person may have interfered, or even become a hostage with a knife to the throat, if the attacker really was not incapacitated. Speculation? Yes...and I will be speculating my azz off for ALL possible options if someone tries to kill me...in order to prevent them continuing an attack on me.
again, I dont believe the last shot was needed but I can see reasonable doubt for justification.
Of course. But the wisdom of preparing does not justify the use of deadly force.
No one would reasonably suggest that someone drop his guard and risk his life, but the fact that someone may have made the decision to take a life would justify the use of deadly force only as long as the attacker possessed the ability and the opportunity to cause death or serious harm at that moment, and then only as long as the defender had no other alternative.
ClickClickD'oh
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Quoted form the textbook, "How to end up in Jail for Dummies"
You are referring to "Are you trying to argue that the use of deadly force would be lawfully justified simply because the "defender" did not know that another person lacked the ability and the opportunity to cause him death or serious bodily harm, or that the "defender" did not know that he was not in jeopardy?".
Let's try it this way: the use of deadly force would be justified only when the user of such force had a basis for a reasonable belief that the person against whom such force had been used did have the ability and opportunity to cause death or great bodily harm at that time; that the user of force was in jeopardy of death or great bodily harm at the time; and that there had been no alternative.
Is it clear now?
herrwalther
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The crux of this whole discussion. Was the third shot necessary? The final answer is probably not. It is literally impossible to know. If the attacker got up after the second shot with the intent to continue the assault, then yes it was necessary. If not, it is murder. The Israeli police and prosecuting authorities have deemed the third shot to be unnecessary and overly aggressive. Which is why the shooter was charged with murder.
9MMare
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You make alot of assumptions based on things you read into my posts...and then write them as fact...or as the totally obvious.
I have pointed out that there may be reasonable belief that that attacker still did possess the ability...and that the shooter had no way of knowing. That's all.
There may be all sorts of things, but whether there is convincing evidence is another matter. And while the actor might think his belief was reasonable, the jury still needs to agree that it is.
Whenever we get into these sorts of discussions it seems that some folks like to indulge in fanciful rationalization to try to dodge some harsh reality. But if you put lipstick on a pig, it's still a pig.
Old Dog
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Yep ... this is why good people go to prison after the worst day of their lives, lawyers still make their money, and juries typically can't decipher what really transpired, or just how each player perceived the situation ... because the lawyers and the jurors normally have never been placed in a lethal force situation, nor any situation requiring them to make split-second decisions that may end up with someone dead.
Kleanbore says:
"Let's try it this way: the use of deadly force would be justified only when the user of such force had a basis for a reasonable belief that the person against whom such force had been used did have the ability and opportunity to cause death or great bodily harm at that time; that the user of force was in jeopardy of death or great bodily harm at the time; and that there had been no alternative."
History tells us that sometimes ... we just don't know or can't possible know. We operate on intuition. The human brain can't possibly process what's going on fast enough to know sometimes.
Has nothing to "trying to dodge some harsh reality."
Actually, there are lawyers who get it, and they win righteous cases. But they are still stuck with the facts their clients have made. Once the incident has happened, nothing will change the facts the lawyer must work with. Bad facts produce bad results. If we want to improve our chnaces of good results we need to learn to make good decisions giving our lawyers good facts.
Nope. It's amazing what we can learn to do and process when we train for it. Consider driving a car on a fast moving, crowded freeway. If you're doing that on intuition you'll be in a ditch very quickly.
Nonetheless, use-of -force law has been pretty much this way in Western Society for several hundred years. It's not going to be changing anytime soon. So if you have a gun for self defense you can learn and understand the law and learn to make decisions supportable under the law, or you can throw the dice and hope for the best. Your choice.
9MMare
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It's a wonder they have juries and the "reasonable doubt" standards at all.
I have actually written most of that as well, I'm sorry you missed it.
I'm glad you have all the answers.
9MMare
Member
I agree, probably not. But did the shooter perceive it to be?
That is what I have been presenting...what someone "may" perceive from what I saw in the video.
And dont forget, their laws are not the same as ours
9MMare
Member
Hey, you are welcome to not explore all your options when you are in such a situation.
I'm going with 'better to be judged by 12 than carried by 6."
I notice you were unable to discuss the actual points made that could lead to reasonable doubt. You must have missed that chapter in your book.
9MMare
Member
I've covered all that...completely. Several times. In detail. (btw, where are you pulling 'no alternative' from? That is not standard and there are several laws that do not require that.)
The possible perceptions of the shooter in that specific video. And proposed them as a reasonable belief. I cant speak for jurors. And they have different laws in Israel.
Cue: final comments by moderators and thread lock.
Signed: someone who did not make disparaging personal comments about others in the thread.
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No, you've made assumptions that certaned imagined evidence or hoped for testimony would be enough for a reasonable doubt. But that's up to the jury, and out of your control.
Bottom line is that you're fooling yourself.
You have tried to contend that the actor or would have been justified because he may not have known whether the victim still posed a viable threat. That's a lot different from having a basis for a reasonable belief that he did still pose a threat. And it would not justify the continued use of deadly force.
Poppycock!
The principle here is preclusion--a necessary element of justification.
Most state laws contain the words immediately necessary. Same meaning.
Again, from Attorney Lisa Steele:
“It is well settled that, if a man is attacked, he has the right to defend himself. If the attack is of such character that, and made under such circumstances, as to create a reasonable apprehension of great bodily harm, and he acts under such apprehension, and in the reasonable belief that no other means will effectively prevent the harm, he has the right to kill the assailant.”
– Com. v. Barnacle, 134 Mass. 215, 215 (1883).
– Com. v. Barnacle, 134 Mass. 215, 215 (1883).
ClickClickD'oh
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I tend to deal with the facts at hand, not what I have speculated about. When I have to explain my actions in a court room, "I speculated" is never, ever going to come out of my mouth.
"I shot a man because I speculated he might be a threat/resume being a threat" is a one way, nonstop ticket directly to jail.
This quote is right next to III% bumper stickers for me to identify someone to stay away from. It is the dunce cap of the firearms community. You shoot only because of an immediate threat to life and only to stop the threat, not because you would rather take your chances with a trial and you might skate on a murder charge.
Because there are no reasonable points that could generate reasonable doubt. The video shows clear, straight up murder. He took a shoot after the threats immediacy had been removed. That's murder.
ClickClickD'oh
Member
While it is true that Israel has different laws than the US, that is irrelevant in this situation as the charges, and outcome would have been the same in US courts. You can not continue to use lethal force in self defense after the threat ceases.
Carl N. Brown
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I have had it impressed on me that it is imperative for a handgun carry permit holder to know when not to shoot, when to shoot, and when to stop shooting. When the threat is stopped, continuing use of lethal force is not justified.
While it is better to be judged by twelve than carried by six, I feel that it is best to avoid trials and funerals both.
'Strategies, Tactics and Training'
If I had someone with whom I had had altercations in the past now following me in a car, I would not pull off the road into what reminds me of the cul-de-sac parking lot at a local store (the entrance is the exit and once blocked in you have no way out). We had an incident where a girl was avoiding her abusive boyfriend and BF was cruising the road for her. He spotted the girl's mother and family friends in a car. He did a U turn in the middle of the road and started speeding up after them. The mother and company drove to the parking lot between City Hall and the Justice Center and parked close to the JC entrance (city police station, city courts, sheriff's office satellite station, 911 call center, etc. with outdoor surveillance cameras; safe zone where people do meet-ups for internet sales, child visitation exchanges, etc.). BF did not try anything. Maybe he was sincerely concerned and wanted to apologize and wouldn't have tried anything if they had pulling into a behind-a-store lot. But rather than try to evade him or get cornered somewhere of his advantage, they chose a safer place to determine his intentions to avoid trouble.
While it is better to be judged by twelve than carried by six, I feel that it is best to avoid trials and funerals both.
'Strategies, Tactics and Training'
If I had someone with whom I had had altercations in the past now following me in a car, I would not pull off the road into what reminds me of the cul-de-sac parking lot at a local store (the entrance is the exit and once blocked in you have no way out). We had an incident where a girl was avoiding her abusive boyfriend and BF was cruising the road for her. He spotted the girl's mother and family friends in a car. He did a U turn in the middle of the road and started speeding up after them. The mother and company drove to the parking lot between City Hall and the Justice Center and parked close to the JC entrance (city police station, city courts, sheriff's office satellite station, 911 call center, etc. with outdoor surveillance cameras; safe zone where people do meet-ups for internet sales, child visitation exchanges, etc.). BF did not try anything. Maybe he was sincerely concerned and wanted to apologize and wouldn't have tried anything if they had pulling into a behind-a-store lot. But rather than try to evade him or get cornered somewhere of his advantage, they chose a safer place to determine his intentions to avoid trouble.
That, more than a discussion of the event that took place in Israel, is the important thing to consider here.
How many of us really program ourselves to stop shooting timely?
It is a hard thing to train. And it may not be an altogether automatic reflex.
But it is important--very important.
If we shoot more shots more than someone judging the event after the fact might consider necessary, particularly if some of our shots penetrate from back to front or are fired after the attacker has dropped his weapon, we may well risk charges and/or a trial.
If our supporting evidence is adequate, we may be able to adequately bolster our defense with expert testimony about human reaction times and such. That has happened.
But what we really need to do is to consider, should we face an attack, just what Carl has emphasized: when not to shoot, when to shoot, and when to stop shooting.
And to think about it whenever we strap on a firearm.
Good put, Carl.
Old Dog
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I'm merely submitting that sometimes, there is not clarity with regard to the "facts." Perhaps bad results but no one can say for certain, absent a video record or multiple eyewitnesses, whether the facts were "bad facts." Most often, forensics cannot always tell us which shot in what order out of multiple shots fired was the lethal shot unless that shot came while the subject was running away or already down.. So was that last shot necessary? After the first three or four shots, could the subject have possibly maintained control of his/her weapon to the point of still presenting a lethal threat?
Of course "we need to learn to make good decisions." But in a lethal force situation, one is never thinking that nor worrying about leaving one's lawyer with "good facts."
Of course we can all perform miracles if we learn a skill and process when we train for it, but mostly, I disagree with you here as well. Perhaps I should have used the term instinct or perception. But I submit much of one's normal driving is performed intuitively
Nevertheless -- and only those who've actually been in a lethal force confrontation can possibly understand this -- you are not thinking things through past frantically remembering "front sight, front sight" while trying to get your weapon on target and possibly seeking cover ... While the outcome might be favorable to you, the aftermath (legal, criminal or civil) might just be a crapshoot, and have nothing to do with the actual facts of the event as you perceived them during the event.
Having said all this, I do agree that the current school of thought perpetuated by many trainers of shooting to slide-lock is irresponsible and can obviously lead to unfavorable long-term outcomes for those who might have prevailed in a lethal force situation.
Yet, anyone who's been in combat or in a lethal force engagement (law enforcement or as a citizen) knows that it can be difficult to know when to stop shooting and attempt to assess the status of the threat. There are a few trainers out there who know this and have devised some training methodology to address this (I believe Tom Givens is one).
It's interesting to note that in many law enforcement shootings -- involving folks who've received advanced training -- I'm familiar with, one or more officers fired many more shots than necessary after the threat was presumably or demonstratively not a threat any longer ... yet a handful of citizen shootings (where the shooters had absolutely no formal training), only one or two shots in each situation were fired by the citizens and resulting in ending by death, incapacitation or the subject's fleeing ...
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Therein lies the problem. They guy in the Las Vegas smoke shop found that out.
It's not what we practice at the range, but it behooves us to also think about the questions "is he really still attacking me, or is he withdrawing?", "is that a handkerchief or a wallet that he just pulled out?", "is anyone moving into my line of fire in the foreground or in the background?", and of course, the question at hand: "is he still capable of causing me immediate harm?".
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