A scenario that has me thinking...

[scottgun]

I've got the answer...

I would tell the attacker that I have a gun and I don't wish to fight. Any further physical confrontation from the attacker would be reasonably seen as him trying to over power me to get my gun. He's going for a gun (mine), I shoot to stop the attack.

Next question.

 

[duns]

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.

That is a good point. One is allowed to respond to force with force. I'd like to develop that idea a bit further.

The scenario says that you and your attacker are equally matched physically. (This is a somewhat unrealistic assumption since the attacker would probably not initiate his unprovoked attack on you unless he thought he had the edge. But we have to stick with the assumption.) It follows that we can expect the two "equally matched" parties to be at equal risk of injury, gross bodily injury (GBI), or death. Neither will come out of hand-to-hand combat uninjured -- both will be injured, one or both may suffer GBI, and one may die. The gun is there on your person -- would a reasonable person leave it holstered and risk GBI or death? Personally, I don't think so. I think a reasonable person would make use of his gun -- at least draw it, which is not use of deadly force, and if necessary to stop the attack, fire it.

To put it another way, I think a reasonable person would use the minimum force necessary to stop the attack. Given that you are equally matched, hand-to-hand combat will not stop the attack unless you get lucky (e.g. attacker falls and hits his head or you get in a decisive blow by random chance). Seems to me -- in this very limited scenario -- the only reasonably effective response would involve bringing the gun into play.

 

[duns]

I would tell the attacker that I have a gun and I don't wish to fight. Any further physical confrontation from the attacker would be reasonably seen as him trying to over power me to get my gun. He's going for a gun (mine), I shoot to stop the attack.

I think that would be a reasonable defense. It does assume you have time to make a warning.

 

[Kentucky Kernel]

I guess my problem is that, from the comfort of our computer keyboards, we have time to think, discuss and pontificate about this scenario. Of coruse, avoidance is my main motto, but I am addressing the OP.

I have already assumed that out in the real world, I'd have no real time to weigh the options. I have already decided, by virtue of the fact that I have decided to carry, that I am very willing to shoot to stop. Sure, loudly warn, then draw, but then shoot to stop (unless there is an immediate and clear de-escalation). About 5 seconds of thought, I guess.

KK

 

[Kleanbore]

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

No.

The scenario permits only these options.

Well, yeah, but one cannot really have a serious discussion about an unrealistic scenario--one which I think has been framed in a silly manner. There's nothing in the scenario about escape not being possible, and one could certainly leave, and should, stand your ground laws notwithstanding, if he values his safety, his record, his fortune, and his personal freedom.

If for some reason my egress were blocked (not mentioned in the scenario), in my case the guy would wind up with a face full of oleocapsicum (not permitted in the scenario).

But if escape is not possible, yes, as much as I dislike "hand to hand combat", I would use physical force to defend myself against physical force (no "fair fight", no use of my knuckles), concentrating on retaining the weapon he does not know I have and on avoiding contamination by his bodily fluids. One would not be trying to knock him out, hitting only from the front and above the waist. A kidney punch, gouged eye, injured ankle, or dislocated shoulder would end it. Better that than facing a very steep uphill defense against a murder charge after using deadly force to defend against physical force. Much better.

But not good. Therefore, (1) escape and (2) less than lethal implements of defense.

None of us like the idea of being pounded upon, but legal minds have wrestled with this problem extensively since the twelfth or thirteenth century, and oddly enough, they have kept coming up with about the same answer.

In the scenario as crafted, in my case the obnoxious gentleman would be an overweight sixty six year old--not likely to start something, but hey, that's the scenario.

(Added) I stay out of bars and places where I am likely to encounter trouble. However, if trouble happens, I think it's more likely to come in the form of someone younger and more fit, and probably, more than one person. That brings in disparity of force--part of "A" in A, O, J. However, I'll still go with "ADEE" and less than lethal implements before resorting to deadly force unless the assailants are clearly armed.

 

[sidheshooter]

If there is one thing that we can take away from this thread, it's the value of "less lethal" (staying away from the more common "less than lethal" term) options on the force continuum. I think we can all agree that playing by the rules of the OP is a drag, so on our own time, let's stack the rules in our favor with ASP or OC. (never mind ADEE).

Not that we shouldn't continue the exercise, of course, but after 3 pages, the real lesson is pretty clear, IMHO.

 

[duns]

...one cannot really have a serious discussion about an unrealistic scenario--one which I think has been framed in a silly manner.

I don't think the scenario was unrealistic or silly. I suspect the OP made it a narrow scenario to keep our minds focused on the issue of whether a person is justified in defending themselves with a gun against an unarmed, apparently equally matched attacker. I'm disappointed that with all your years of legal experience you won't opine on this issue.

 

[wulfhart]

In the scenario as crafted, in my case the obnoxious gentleman would be an overweight sixty six year old--not likely to start something, but hey, that's the scenario.

I beg to differ. I used to work in a retirement community for 50+, one "gentleman" was quite peeved at me because he wanted a "Turkey Sandwich!" but not the turkey sandwich I had delivered. I thought he was going punch me. :-D

This is interesting, though. I would not fear for my life if I was "overweight sixty six year old" fighting another "overweight sixty six year old." The amount of damage the other could deal is substantially less than I could deal to myself.
I would fear for my life if an enraged clone of me started attacking me without cause. A muscular, 250 pound, 6 foot, 20 something, caveman. One punch to my nose and that could be permanent disfigurement of my beautiful furry face. I also hate picking up teeth. Sure I can take a lot of hits, but so can my clone and he obviously doesn't care about his (shockingly handsome) looks. I would run, but my clone would match my pace. Thankfully the clone could never overtake me and eventually I would run into a LEO. If it was someone just slightly more athletic than me with my build, I would be doomed.

I have to vote for shooting him (after warning him and running to the point where I can't get away anymore) given the choices. I would honestly fear for my life. Not just trigger happy, as some might believe. I would rather risk having my wife and kids visit me in prison every week for 5+ years than visit my grave.

Thank God this scenario will never happen, because I can always run away and in real life people my size don't just attack me on the street.

 

[duns]

... I would not fear for my life if I was "overweight sixty six year old" fighting another "overweight sixty six year old."

wulfhart, you made a lot of great points but I have to disagree with you on the above. The two elderly gentlemen may not have great physical strength but they are also likely to be quite frail.

 

[sidheshooter]

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/01c1...ocument&Click=

BTW, kleanbore, thanks for this article. As you say, a good read.

 

[Kleanbore]

Posted by duns: I suspect the OP made it a narrow scenario to keep our minds focused on the issue of whether a person is justified in defending themselves with a gun against an unarmed, apparently equally matched attacker.

Interesting point. Of course, that's not a new question, but one the answer to which has been the basis of judgements for many centuries. So, to me, the questions are,

1. Did he know the anwser?
2. Was he trying to find out how many others know the answer?
3. Was he trying to find out how many people would admit to a propensity to break the law?

Posted by wulfhart: I would fear for my life if an enraged clone of me started attacking me without cause..... I have to vote for shooting him ... I would honestly fear for my life

How one would feel is one thing, but it's not the final determinant by any means. How a jury of "reasonable people", having been given instructions on the law by a judge in the jurisdiction, will see things may well not coincide.

They will be judging things on the basis of the evidence you have been able to provide, including your testimony; and on other evidence, including the testimony of witnesses and forensic evidence, and very likely, on the testimony of the person whom you have shot. I've gleaned from posts on these fora that, television fiction aside, by far the vast majority of persons shot by handguns survive.

Do you think what he says will help your case, or hurt? By the way, based on my experience on juries, you can be assured that he will look, dress, speak, and overall, conduct himself like a model citizen at worst, that he will have been expertly coached, and that any adverse effects of your gunfire will be shown skillfully, and to your disadvantage.

Bad scene all around.

 

[rainbowbob]

3. Was he trying to find out how many people would admit to a propensity to break the law?

4. Was he trying to find out how many people understand they have a legal right to defend themselves with all necessary force against unlawful assault?

 

[Kleanbore]

4. Was he trying to find out how many people understand they have a legal right to defend themselves with all necessary force against unlawful assault?

I don't see how asking whether a person is justified in defending himself with a gun against an unarmed, apparently equally matched attacker would address that question.

BUT: arm the attacker, multiply his numbers, and/or otherwise add to his relative capability, and one can discuss Question 4.

 

[duns]

Interesting point. Of course, that's not a new question, but one the answer to which has been the basis of judgements for many centuries.

Could you kindly outline those judgments and/or provide a few citations that we could look up?

 

[Leanwolf]

KLEANBORE - "I've gleaned from posts on these fora that, television fiction aside, by far the vast majority of persons shot by handguns survive."

As an aside... I lived in Los Angeles for 36 years. For a number of years I shot IPSC with the old Southwest Pistol League. I became acquainted with a doctor, a surgeon, who shot IPSC with us. He was the head of a trauma team working weekends at one of the large L.A. hospitals where lots and lots of gunshot and knife wounds were treated. He said his trauma team was called the "Saturday Night Cut and Shoot Club."

I asked him once, "Of all the peope shot and stabbed who come into your emergency room, how many survive?"

He answered, "About fifty fifty percent each. You wouldn't believe some of the wounds we see where the victim survives"

So, just because a person is shot or stabbed/cut, it doesn't necessarily mean he is gonna die. Might and might not.

L.W.

 

[DFW1911]

It seems to me that many of us aren't giving ourselves credit for being able to handle ourselves physically, but you know you better than I know you.

You / a person does not have to engage in a fist fight if s/he is restricted to using hands only. There are techniques to stop someone in their tracks, but you have to invest the time and money learning them. If you have not, consider it. At the very least take a self-defense class wherein you learn practical and useful techniques.

Hands only?
How about pushing the guy (not an arm-based push, but a hip-based Aiki-Jitsu type of push that sends someone flying) and running away? (Quick sidenote: I actually used this technique in pretty much the scenario being described...but I didn't run away: I used the push to set up a Judo throw that ended whole thing instantly. Judo is great to know). Some throws can be executed by using your hands / arms only.

Hands only?
The eyes are so vulnerable it's almost unreal. There are very good eye attacks you should know. He has to breath, right? A punch to the throat has been shown to disrupt that a bit. A palm-heel strike is devastating to the point of being a "last resort" sort of thing IMHO. Clapping ears also comes to mind.

There are dozens of techniques that will create the window of time you need to escape. You don't have to go toe-to-to with someone, you have to get the h*** out of dodge. The idea is to perform a technique or two and create distance immediately.

My point is that it may behoove us to learn and practice something so you don't have to shoot someone. At the very least your gaining knowledge and adding valuable tools to your force continuum.

Thanks,
DFW1911

PS: Yes, I realize these techniques can be used against you, which is why you learn how to defend against them as you're taught them.

 

[rbohm]

going under the assumption that he is unarmed, i am too old and too fat to run away, thus my firs thought is disable this idiot to end the fight. the easiest way to do that is blow out their knee. as was said in the movie road house, it doesnt matter how big or strong your opponent is, if you take out his knee, he is going down like a sack of potatoes.

 

[rainbowbob]

I don't see how asking whether a person is justified in defending himself with a gun against an unarmed, apparently equally matched attacker would address that question.

That appears to be because your vision is impaired by the erroneous notion that it is illegal to use lethal force to resist an unlawful attack if the assailant is roughly equivalent in age, size, body type, etc.

It simply ain't so.

If faced with an unprovoked assault, you have the legal right and ability to resist that assault - regardless of the assailant's height, weight, age, gender, etc.

 

[Kleanbore]

That appears to be because your vision is impaired by the erroneous notion that it is illegal to use lethal force to resist an unlawful attack if the assailant is roughly equivalent in age, size, body type, etc.

It simply ain't so.

Is that a legal opinion? Do you have a basis for disagreeing with the links in post #46?

If faced with an unprovoked assault, you have the legal right and ability to resist that assault - regardless of the assailant's height, weight, age, gender, etc.

Resist, yes. Deadly force? That's another question.

Here's another source:

Your attacker must have the ability—the physical, practical ability—to cause you harm. Common sense applies here, as does context. A gun gives your attacker ability (lethal ability, in fact); a knife gives ability as well. Indeed, most weapons qualify, all the way down to glass bottles, baseball bats, and screwdrivers. While the latter are not designed as weapons, if they are applied as such, they can certainly kill you just as dead.

Other “ability” considerations include disparity in size or physical power between you and your attacker—a very large man versus a very small man, a strong man versus a cripple, a trained fighter versus a bookworm, a man versus a woman, all can apply. And don’t forget disparity in numbers—four men attacking one can very easily kill or cripple, unless that one is a Hollywood action hero.

If a man punches you, you probably cannot justifiably shoot him, because that’s a lethal response to a non-lethal attack. If a three-year-old punches you, you probably cannot do anything at all. If, on the other hand, a 300-pound boxer punches you, you may be justified in responding with deadly force, because his fists can be deadly as well.

Always remember:

The threat must be current, immediate, and unavoidable.
Your level of force must be appropriate to the threat.
Your use of force must stop when the threat ceases.

http://www.useofforce.us/3aojp/

Now, the OP specified that the other guy is unarmed; in reality, I do not see how anyone could know that about anyone, and if anyone aggressively and quickly moved within Tueller distance of me, I would not assume that he did not have a contact weapon. I'd try to get away first, then take other action. My problem, it seems, would be that no weapon would be found.

These days I would never predict what a jury would do. I happened to talk today to a long time friend whose law firm in another state does handle some self defense cases. His advice is to get the heck away if at all possible, because juries can do some strange things regarding whom they identify as the good guy and the bad.

 

[rainbowbob]

That appears to be because your vision is impaired by the erroneous notion that it is illegal to use lethal force to resist an unlawful attack if the assailant is roughly equivalent in age, size, body type, etc.

It simply ain't so.

Is that a legal opinion? Do you have a basis for disagreeing with the links in post #46?

Yes...it is my opinion based on my understanding of my state's laws.


I am familiar with the material you quote in post #46 from UseofForce.US. I have had that site bookmarked for years and have read it several times. They are the opinions of one man, Brandon Oto, presumably an attorney. I don't happen to agree with everything written by Brandon Oto. You seem to be in thrall of ANYTHING written by ANY attorney, even if it disagrees with common sense.


I hate to insert statutes into a discussion thread, but perhaps they will give you some idea of where I'm coming from. I don't need to pay an attorney to read them for me - and hopefully you won't either. These are, admittedly, only excerpts I thought particularly relevant.

RCW 9A.16.020
Use of force — When lawful.

The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:

(2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody ;

(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary;

RCW 9A.16.110
Defending against violent crime — Reimbursement.

(1) No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030.

(2) When a person charged with a crime listed in subsection (1) of this section is found not guilty by reason of self-defense, the state of Washington shall reimburse the defendant for all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in his or her defense.

In other words, a CITIZEN may use force including deadly force to effect the arrest of a person in the act of committing a felony (i.e., a citizen's arrest).

"No more force than is necessary" and "any resonable means necessary" means just what it says, and includes the threat of force (i.e., pointing a firearm at someone) and the actual use of force, including deadly force, if necessary, to defend oneself or other innocents from violent crime.

There is nothing in there about the age, size, or gender of the parties, or whether or not the assailant is "unarmed".

It simply says that it is lawful to protect oneself and others by "...any reasonable means necessary...who is in imminent danger of, or the victim of, assault...or any other violent crime."

I don't understand - what is so difficult to understand?

Frankly, your apparent fear of legal repercussions for the use of force in cases that common sense would inform you are lawful self-defense or defense of others, and your slavish dependence on attorneys to figure it all out for you, may leave you paralyzed and defenseless should such an occasion actually arise.

I hope and pray it isn't so.

Good luck, and may God bless us all.

 

[c919]

Well, yeah, but one cannot really have a serious discussion about an unrealistic scenario--one which I think has been framed in a silly manner.

Then why are you wasting your time in this silly thread?

Interesting point. Of course, that's not a new question, but one the answer to which has been the basis of judgements for many centuries. So, to me, the questions are,

Did he know the anwser?
Was he trying to find out how many others know the answer?
Was he trying to find out how many people would admit to a propensity to break the law?

Sorry to disappear from my own thread guys. My computer has been a bit ill.

Just to clarify a bit about my OP, I'm mearly proposing a scenario with the intentions of conversation. There's defintely no strange motives involved.

Also, for a bit of perspective as to why I set this thread up the way that I did, I'll elaborate on my personal encounter that led to my pondering this topic. I was in traffic a little while back, and the lane that I was in was very backed up. The lane next to me was virtually empty. I checked my mirror and saw an SUV a good ways back, but I clearly had time to merge. Well, what I couldn't see in my mirror was the fact that the fellow driving the SUV was going about 60 or70 through a very congested area. As I merged, he flew up behind me and got about 2" from my bumper, all the while laying on his horn. He followed me this way for about a block or two, then merged to the left of me and flipped me off.

So, I thought that was that. Well, a few blocks later I pulled up to a red light and was blocked on the right, front, and rear. Guess who pulls up and stops in the left lane (completely blocking me in)? Yup, Mr. Redneckthug. He's in his late twenties, about my size, maybe a little bigger and has a girl in the car. He hops out and comes over to my door demanding that I step out of the car so he can "F--- me up." I decline. My window was cracked about 2" and the doors were locked.

At this point I tell him that I don't want to fight and that he should get back in his car and we'll forget this ever happened. He didn't like my plan. He continued to get more angry and threatened to do some serious harm to me. I told him I was calling the cops and that I didn't want to fight. Hell, I appologized and told him he was right, etc. Now he's just getting mad as can be. He's calling me every name in the book and trying my door handles. When this fails, he starts punching my window and banging on the car. Then I get my break: green light. I drive off as he gets in his car. He turns off at the next light.

So, yeah, I probably could have done things better, but that's not the point. I just wanted to give you some perspective. These things can happen. I didn't feel in danger for my life, and I never let him know that I was armed. However, things could have gotten worse, at which point I would have done whatever it was that would ensure that I came home safe.

There was no talking to this guy, he was beyond talking to. If there wasn't a barrier between us, things would have gone much differently.

 

[duns]

Come on guys! I don't know if I'm the only one confused here. I saw the scenario as one where you have only two options: hand-to-hand or use your gun. Without expecting me to absorb every link and every nuance of expression, could you please just say which alternative you favor and why. If you've already done so, I apologize in advance for being so slow on the uptake.

 

[Straight Shooter]

I don't need to pay an attorney to read them for me - and hopefully you won't either.

The point of speaking to an attorney isn't so that he/she can read you the words. Its so that they can convey, from experience, how those words have been interpreted in actual cases.

in case the force is not more than is necessary

This is the part being debated in this thread. Whether or not the use of lethal force is excessive against a BG who is, based on the OP, unarmed and, based on the responses, shot before he shows intent or ability to use lethal force.
How has that played out in court?

 

[Straight Shooter]

Then I get my break: green light. I drive off as he gets in his car.

You didn't give us the option of escaping. Which I think most would have chosen.

 

[rainbowbob]

Whether or not the use of lethal force is excessive against a BG who is, based on the OP, unarmed and, based on the responses, shot before he shows intent or ability to use lethal force.

You didn't give us the option of escaping. Which I think most would have chosen.

Did you read the OP?

Let me help you out:

You are by yourself...facing a certain attack from an unknown assailant...a really enraged individual who has for whatever reason decided to harm you.

You have already done everything possible to avoid, and nothing has worked. You have yelled, ran, called 911 and he's still on you.