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A scenario that has me thinking...

Discussion in 'Strategies, Tactics and Training' started by c919, Jun 9, 2010.

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  1. Fred Fuller

    Fred Fuller Moderator Emeritus

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    The OP says, 'it's either hands or gun.'

    That implies YOU are carrying a gun. Getting into a furball when you are carrying a gun is NOT a sound tactic.

    Because if you get into a fight when you are carrying a gun, you are in a gunfight by definition. And you brought the gun to the fight, even if your assailant doesn't have one. As soon as he discovers yours, he's going to be trying to get control of it.

    Think it through...

    lpl
     
  2. Kleanbore

    Kleanbore Moderator Staff Member

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    I can't understand it, either.

    By whatever means are effective and appropriate, yes. I might suggest avoidance or escape. "Avoid" the threat would be a better choice of words than "end" it, IMHO.

    Perhaps they understand that a defense of justifiability wold probably not succeed unless there were either weapons involved (ruled out by the OP) or a clear disparity of force (also ruled out in the OP's hypothetical scenario).

    I'm not sure very many people really are so certain of that--I'm not. However, a seasoned LEO recently pointed out in one of these threads that, although a punch can be lethal, it is not probable that it will kill or seriously injure (by the legal definition, not yours or mine). Goes back to two things--disparity of force (big guy, for example, or impairment), not applicable here--and reasonable belief, as judged by others after the fact.

    Most of the writings on this indicate that, if the alleged aggressor had not had a weapon, the defendant may still prevail in a self defense argument, if he had been outnumbered, impaired, or significantly outsized.

    I don't think that anyone my size and age would behave aggressively toward me one on one, but I know that if it happened I would back away, that I would not engage in hand to hand combat, and that I would resort to deadly force only as a last resort and after it were clear that I could not get away, with loved ones, of course.
     
  3. JDoe

    JDoe Member

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    Facing certain attack from an unknown individual of unknown capability and given the rule in the OP of having no way to avoid a physical attack is a nightmare of a scenario.

    I've read about too many people getting one punch to the head falling, hitting their head on something like the curb and ending up dead right there. In other incidents the attacker could have a hidden weapon and I end up wondering where the blood is coming from before I realize that I've been stabbed or slashed and just before my vision begins to dim from loss of blood and before I collapse and bleed out.

    When my life is at stake the best choice seems to be the one most likely to give myself the best chance of survival.
     
  4. Jay Kominek

    Jay Kominek Member

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    You're quite right, you didn't say you'd accept an ass kicking. But it seems that is exactly what you're telling bababooey32 to accept, here:

    He doesn't feel he'd be capable of taking an arbitrary assailant in a struggle, and you're telling him lethal force is inappropriate. The only interpretation I can see is "Accept being beaten up, and take comfort in the fact that you can have him arrested and sue him". If I've misinterpreted that, I'd appreciate it if you could explain what you did mean.
     
  5. John Parker

    John Parker Member

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    That's the ticket. I'm not going to chance some clown taking my gun and my life.
     
  6. Straight Shooter

    Straight Shooter Member

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    Jay Kominek,

    You can't legally kill someone over a fist fight. I'm not suggesting that you sit there and take it but you can't overreact to it either.

    Sometimes in life you get your ass kicked, it happens. That doesn't justify killing someone.

    The OP removed the disparity of force option:
    So we have a run of the mill street fight, the opponent has no weapon, has shown no indication that he has the means to kill you or cause serious bodily harm, he wants to fight you but not a single punch has been thrown yet. Your (and others) response to this is shoot him?

    OK, let's play that out.

    You shoot him before he has a chance to hurt you. You get arrested. You are now in court and trying to convince a jury that you were justified in the homicide of Mr. Bad Guy.

    The prosecutor outlines what I just did, your defense is?
     
    Last edited: Jun 10, 2010
  7. rainbowbob

    rainbowbob Member

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    a.) Yes, you can under some circumstances. Being assaulted by someone using their fists is not a "fist fight".

    b.) No, it doesn't - not if I can prevent it.

    c.) Yes, it might.


    First...What the heck is a run of the mill street fight? If you are talking about mutual combatants going at it, then no, you don't get to introduce a firearm if you start losing.

    Second...He DOES have the means to kill me at the ends of his arms and legs.

    On the other hand...if you're talking about a unilateral threat to punch my lights out...I will step back...declare my peaceful intentions...command him to stay away from me...

    If he initiates an assault at that point, yes, I may draw my firearm under those circumstances. If he continues to come at me threateningly - he is likely to get shot - before a single punch is thrown.

    "He threatened to initiate an unprovoked attacked...I told him to stay away...I let him know I was armed...I backed up...he kept coming at me...I aimed my weapon and shouted "Stop, or I'll fire!"...he kept coming at me..."

    "I was in fear for my life, as there have been far too many cases in our city recently of innocent people being killed or permanently injured by "unarmed" thugs using their fists and boots."


    The only truly unarmed man is a quadriplegic or a quadruple-amputee.


    By the way...In this city a man was attacked by an "unarmed" mentally ill man suddenly and without provocation. The victim was able to get to his concealed handgun and shoot the fellow. No charges were filed.

    Also...Our beloved "Tuba Man" (a well-known street musician) was attacked by a gang of kids and was killed by a blow to the head.

    And...A much-admired middle school teacher came to the aid of a women in distress being assaulted by a stranger at a bus stop. He reached for his phone to call 911 and was struck to the pavement, suffering permanent brain damage. He'll never teach again.

    More?...A man was watering the flowers he'd planted in a street turn-around and refused to move his hose for some impatient teenage girls who wanted to get by. They called a boyfriend who punched the man in the head - once. His head hit the pavement and he died almost instantly.

    Need I go on?

    I won't provoke anybody, and I won't try to correct bad public behavior. I'll avoid bad situations and areas if possible. I'll talk my way out of a tight spot if possible, or just run away if necessary.

    But I'm not taking a punch from anybody - for any reason.
     
    Last edited: Jun 10, 2010
  8. Straight Shooter

    Straight Shooter Member

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    He attacked you? How so? Did he use fists or boots against you?

    It sounds to me like you were having an argument. It didn't get physical until you shot him.

    Need more info, maybe he had a justifiable reason to use lethal force.

    A gang of kids is a disparity of force and could be justified.
    Was the attacker a man? Once again disparity of force. Could be justified.

    So what do you do here, shoot the guy as he's walking up?

    This is the threshold to kill? The law disagrees with you.
     
  9. Jay Kominek

    Jay Kominek Member

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    Just as you never said you'd let your this hypothetical person beat you up, I have in fact, never said what I would do in this circumstance. I'm just very curious about your reasons for your answer.

    I think I've worked it out to my satisfaction, though, so I won't bother you further, especially since I'm not actually getting any answers, just accusations that I want to shoot people. :(
     
  10. sonier

    sonier Member

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    Many states have a no brandishing law, if i was in a state that allows you to open carry i would make sure the attacker knows i have my hand on the gun ready to draw, i would also put out my other hand to motion him too stop. In states that dont allow open carry and have brandishing laws, id do the same thing, because in a fist fight egos are high and so is anger, if my guns gets in his hands he may try to shoot me just out of anger and adrenaline. Id much rather get a brandish charge than to be shot or possibly face a jury for self defense killing. We had a deputy here in town have this scenario a drunk kept approaching him wanting to fight the deputy had walked backwards for over 100 yards before he had to pull his gun, at that point the guy pulled a knife, the deputy then acted in self defense, point is you dont know if the bad guy is armed until its too late.
     
  11. Straight Shooter

    Straight Shooter Member

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    You are correct, you never said that. My apologies for misquoting you.

    I think I did answer your question...
    I do not think that as this scenario has been set up that lethal force is justified.

    I don't think someone should "accept" being beat up, they should try to defend themselves but you can't go overboard and use lethal force when it isn't justified. That may mean you get beat up and your legal recourse is to have him arrested for assault.

    If it is justified from the beginning or becomes justified during the attack, that's a different story.
     
  12. PigButtons

    PigButtons Member

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    If you live somewhere where this is law, I pity you. More and more states are moving towards a 'no retreat necessary' form of self protection law, also known as castle law. If you don't have it make it a campaign issue for your state level representation.

    You can't possibly know if the guy chasing you is a MA expert prior to the fight under the conditions the OP set up.

    Shout "I don't know you! Leave me alone! I don't want to fight!" etc. And don't wait to get hit. A friend of mine was killed by being pushed down. He hit his head and two days later died of a brain hemorrhage.

    Draw, if he stops, hold him until Leo shows up. If he runs away, let him, wait for the Leo and provide what info you can. If he continues to charge, let God figure it out.
     
  13. Straight Shooter

    Straight Shooter Member

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    PigButtons,

    We didn't get into whether one must retreat or not because the OP stated it wasn't an option. In PA we have a hybrid, you must try to retreat on the street if you can do so safely. You have no duty to retreat from your home or place of business.

    We have legislation proposed HB40 which would remove the duty to retreat and protects against civil suits. It just passed out of committee. We're working on it.

    I'm sorry about your friend.
     
  14. sidheshooter

    sidheshooter Member

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    Not to sound like a broken record, but this debate is another good reason to take an LFI class, or something close to it taught by someone qualified.

    I'm with rainbow bob on this one. Following the local news, we've had two people killed by single aggressor empty hand assaults in as many years in my area.

    If you've got a hand on your gun and you are beseeching someone to stay back because you are scared, and they keep coming; by definition, they think they can either take you despite the gun, or they think that they can take it away from you.

    Who on earth knows what their reasoning is at this point... if it's good enough for them, however, it's probably good enough for you.
     
  15. rainbowbob

    rainbowbob Member

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    If they attack you after every effort to disengage and discourage it fails - their reasons become irrelevant and you are left with the option of defending yourself with whatever means necessary to stop the assault.

    By any reasonable standard, you are not required to put up a "fair" fight, nor are you required to submit to the assault.

    It is no more reasonable to suggest a man should take a beating, then to suggest a women should take being assaulted and raped.

    In either case, if all else has failed, all necessary force should be employed in defense of self and other innocent non-combatants.
     
    Last edited: Jun 11, 2010
  16. mnrivrat

    mnrivrat Member

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    I carry a weapon these days for self defense.

    If I were to fear the legal reprocusions of using my firearm for that purpose, more than I fear for my life when it is threatened, I would not carry a weapon.

    Admittedly in my present condition I have no ability to flee, nor would I expect to win a physical battle. That said, for the purpose of attempting to answer the OP's question I have to revert to earlier days when I might have had a chance to hold my own or flee.

    I see no reason to believe that if put in a position where I am going to be assaulted, that I can control the assault to a level where I am not severly injured or killed. No matter how good you may think you are at defending yourself without a weapon, you are not in control, and you have no ability to reasonably predict the outcome will be in your favor. The key issue to me is wether you can flee/avoid or not. If not, I believe it is always reasonable to use your best defensive tool to prevent bodily harm or death.

    I don't have a crystal ball to determine whether a beating will leave me with a black eye or a ride to the morque. If I can not avoid - I will do whatever it takes, and use whatever the best tool available is, to defend myself.
     
  17. duns

    duns Member

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    Horrible situation and one which I've agonized over since I received my CHL without coming to a firm conclusion.

    I agree with those who said one should not be expected to take a beating. Unfortunately, I also agree with those who said it would be hard to justify use of deadly force against someone who has not made physical contact with you.

    Pepper spray sounds like the appropriate response (force - non deadly - to prevent force) but in your defined scenario I would not have pepper spray on me.

    If he starts his physical assault, before I can do anything to prevent it, I would try to fight him off sufficiently to draw my gun. If at that point, it seems necessary to shoot him to end his assault, I would do so.

    On the other hand, if the situation builds up gradually, I would try verbal judo, if that fails, I would draw the gun while continuing to warn him to stay back. If that fails, I would try to shoot when the first blow is imminent but has not actually landed. I don't think I can risk him getting in even one blow because he may well then obtain control of my gun. Yes, I could be accused of shooting before he contacted me but on the other hand I could articulate that the violent contact would have occurred but for my use of the gun.

    Does this seem a reasonable strategy?
     
  18. skifast

    skifast Member

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    In the scenario given, I would be in fear of my life or serious bodily harm. I would shoot the attacker, until I run out of ammo or the threat is removed. It sucks for the bad guy, but it was his choice to take the risk.

    For those that do not think it is a reasonable fear, google Chris Kernich. Chris was a star high school football player. He was in good shape. He was beat to death in Kent, Ohio. I understand that disparity of force came into play, due to it being a 3 on 1 fight. However, it shows that a person in good physical shape can be killed in a fight without weapons. At 47, I am not exposing myself to the possibility.

    I also disagree with the advice to ask a lawyer. All you are going to do is spend money for a worthless opinion. The lawyers opinion will be based on a hypothetical situation that will not be identical to future event. Further, his opinion will not be a firm opinion. It will be more likely than not. Finally, the lawyer's opinion will have no bearing in a criminal case. Finally, I really don't like billable hour chasing shysters.
     
  19. uspJ

    uspJ Member

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    agreed. there are far too many variables in this kind of scenario to have a "if this happens, do this." kind of plan. even if you talked to your local prosecuter you would most likely get the same kind of gray area answers.

    every case will be looked at differently due to the people participating.the defendant, investigators, witnesses, and prosecuters will be different in town A than the ones in town B, even if the acts the gg and the bg took where identical one may have a different outcome than the other due to how others perceive details and evidence.

    i will say that if i am unarmed then i will try to fight off the attacker and esscape if deescalation did not work. if i am armed and could not deescalate the situation i will not fist fight with an attacker who could gaiin control of my weapon and use it against me.
     
  20. duns

    duns Member

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    I also agree that it is a waste of money to ask a lawyer. The lawyer will only be able to cover the basic principles, which we can learn from our state penal codes, and to discuss a handful of scenarios (where he will undoubtedly refrain from giving any specific advice due to the large number of factors involved). We will learn much more from our own reading and from discussion amongst ourselves on this forum.
     
  21. Kleanbore

    Kleanbore Moderator Staff Member

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    I probably would too, but the word missing is "reasonable"--the definition of which, though not clear cut, has evolved in the legal lexicon over a very long time, and the application of which will be determined by others.

    No weapon? No disparity of force? Legal writings with which I am familiar do not seem to even begin to support the use of deadly force here.

    While a lawyer will not ever give cookbook advice for a hypothetical situation, he or she can give much better advice regarding what the law means in a particular jurisdiction than a lay person--provided that he is an experienced criminal lawyer who is familiar with self defense rulings in that jurisdiction.

    I can tell you from a quarter of a century of working with attorneys that it is never, ever a good idea for a lay person to try to interpret the law himself. Lacking a foundation in legal theory, related courtroom experience, an understanding of the applicable jury instructions, and a full knowledge of all relevant appellate rulings, the lay person just cannot rely on his or her own interpretation. I got pretty good at it in the particular compliance areas in which I worked, but I never assumed I was correct without professional confirmation.

    Arizona residents have this available to them; it was put together by Arizona attorney Michael Anthony:

    http://www.azdps.gov/Services/Concealed_Weapons/documents/instructors_ccw_legal.pdf

    Everyone should heed this part (see page 2):

    For Arizona residents, this is what Mr. Anthony says about the question at hand here; see page 39:

    Is the threat of a punch deadly force? Is it even physical force? Is a punch deadly force? What have the courts said?

    This paper was written by an attorney for attorneys who may at some time take on a self defense case. Though not jurisdiction-specific, it is worth reading:

    http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/f587d7d10c34fff2852572b90069bc3c?OpenDocument&Click=

    Here's a relevant excerpt:

    No, I don't think it's wise to try to figure this out for oneself, or to assume that if you would be fearful, it would be OK to shoot.
     
  22. rainbowbob

    rainbowbob Member

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    I had to go back and reread the OP to refresh my memory of what the question is. Our posts ought to include our answer, and an explanation of why we chose that answer.

    I chose A. My posts have discussed why I would make that choice.



    I don't see "Neither...call a lawyer and ask him what to do..." as an option.
     
  23. scottgun

    scottgun Member

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    This is a serious question. If ignorance is no excuse for violating the law, then how is a lay person supposed to know what the law is? Do lawyers think they have a monopoly on reading, comprehension and common sense?

    I am a reasonable person, and I make an honest effort to read and interpret the laws and the meaning behind the laws, I can reasonably believe that I have a grasp on what is legal and what is not.

    With regards to the OP's question, it is never a good scenario to only have 2 options, both of which are extremes. I would use pepper spray along with leaving the area. Shooting or duking it out are both inappropriate for this scenario.
     
  24. MisterMike

    MisterMike Member

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    It's always difficult to come up with the "right" response to these hypotheticals. They're at least a little unrealistic, and we all come at this with different biases and experiences.

    One thing I do know is that it's not at all uncommon for people to die or be seriously injured in the course of an ordinary street attack. One instance that comes to mind occurred a few years ago here . . . a bike messenger, pissed off at a pedestrian who apparently insulted him a day or two earlier, confronts the guy and pushes him. The victim tumbles down a few stairs, whacks his head and dies. There are, of course, innumerable comparable situations.

    My belief . . . whether or not I can put it into action is another question . . . is that the last thing you should strive for is a "fair fight." If you have no opportunity to de-escalate or escape, and if you are in enough danger to legally justify a response, then you should respond with more force than what you're confronted with. Enough force to stop the attack instantly. Sometimes that might be a kick in the nuts. Other times, it might be a jab from an ASP. Or, it might be a couple of center-of-mass shots . . . or more . . . from your handgun.

    Maintaining the upper hand is what I'd hope for. A fair fight means you stand a chance of losing your life.
     
  25. duns

    duns Member

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    Kleanbore, since you reject alternative B (stopping the threat with your weapon), you must be choosing alternative A (hand-to-hand combat). The scenario permits only theses options.

    The scenario assumes that you and your assailant are equally matched physically. That means about a 50% probability that your attacker will prevail and will be able to take your weapon and use it on you if he wants to. Have you taken that into account in forming your opinion?
     
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