Interesting scenario video with analysis

Discussion in 'Strategies, Tactics, and Training' started by hso, Sep 3, 2022.

  1. hso

    hso Moderator Staff Member

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    Never hurts to have a recognized gun guy learn something, but even better with an experienced prosecutor.


     
  2. Kleanbore

    Kleanbore Moderator Staff Member

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    Great stuff!
     
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  3. fastbolt

    fastbolt Member

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    It can be helpful when a training opportunity reveals when someone may not properly understand the ramifications of the way the laws work regarding self defense (or defense of an innocent 3rd person). When people get subjected to surprise stress, and they don't have any previous knowledge or training upon which to rely, they may make improper decisions they might later not believe they'd made. They may even deny having done something, not realizing what happened.

    Sure, even 'trained' persons, like cops, make mistakes of judgment during dynamic and chaotic situations. While you can't totally eliminate human error, getting some exposure to scenario training and the knowledge of how the laws work is better than not having it. The old "better to have it and not need it " maxim applied another way. ;)

    Also, it's probably prudent to keep in mind that the use of simulated/dye-marking cartridges - while they can hurt and cause injury without proper safety equipment - aren't the same as hitting someone with live rounds. While someone may be able to absorb all the training sim/dye-marking hits available in the room, without 'being stopped', it's not going to reflect how things may occur in a real situation, where live ammunition is being used and actual GSW's are inflicted. Practicing 'mag dumps' with dye-marking cartridges may not be the best preparation for someone to realize when deadly force is no longer appropriate, reasonable or justified in real life.

    If someone can find properly conducted, safety-oriented professional scenario-based training involving the use of dye-marking cartridges, with properly prepared role-players and scripted scenarios designed to teach and evaluate the demonstration of knowledge of the law, good tactics and sound decision-making, it's probably not a bad investment of time and money. ;) OTOH, it's also probably a good idea to make sure your health condition is physically up to the demands and stress, as it can be surprisingly challenging and stressful if you've never done it.
     
  4. old lady new shooter

    old lady new shooter Member

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    This was fascinating and possibly the most useful SD video I've ever watched. Having Colion Noir as the guinea pig was a stroke of genius, here is a guy who is highly trained and also himself a lawyer, hearing his precise description of the thoughts and feelings he experienced during the two scenarios was extremely instructive IMO. And yes, the commentary of the other lawyer was excellent.

    Thanks for finding and sharing this @hso. :)
     
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  5. Kleanbore

    Kleanbore Moderator Staff Member

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    I sent the link to some friends, with this note:
    ___________________

    Coupla attorneys here, in an excellent training video.

    Colion Noir (the one who is obviously descended from people from sub-Saharan Africa, and who was born Collins Iyare Idehen Jr.) is an attorney from Texas.

    The video covers two hypothetical scenarios involving the civilian use of deadly force for self defense and/or for the defense of others.

    Again, it's about deadly force--force that would reasonably be expected to cause serious injury or perhaps even death.

    Both scenarios show the use of firearms. Don't get hung up in that! Even if your last gun was a Daisy Red Ryder 200 shot carbine-action air rifle with a compass in the stock and this thing that tells time, this could apply to you. The same legal principles that apply to the use of a handgun or shotgun apply to a nine iron, a crescent wrench, a kitchen knife, an asparagus digger, a plant stand, or a Louisville Slugger that is brought into play in a use of force incident. Read that again, and remember it!

    The importance of one part of the video may be lost on many viewers. That's the part where Colion says he remembers firing three shots when he really fired more. I'll cheat and tell you why that is important:
    • Persons who have been involved in stressful incidents--not only robberies and muggings, but also auto accidents, falls, and so on--quite often misremember the details;
    • Many people who do not know any better will answer questions from first responders, rather than waiting for legal representation, and what they say can and will be used against them; and
    • Discrepancies between what a person recalls and what other evidence shows can, and often does, destroy the credibility of the individual.
    Don't! An' don' ever talk to the media.

    This is really good stuff. I recommend watching it and coming back to it again later.

    There are a number of nuances that may not be obvious to those who are not conversant in self defense law. My distribution here is limited to a select few, and I will gladly respond to any questions that you may have.

    Flubbing up on one question on the real final exam (doing one thing wrong) could cost you hundreds of thousands and put you away for a good long time. Many decent, well-meaning people to whom that happens do not have even an inkling about how they ended up in the hoosegow.

    And don't forget that part about the nine iron.



    ****************

    Some pertinent thoughts:
    • Many people plead self defense; if one has injured or killed someone and the evidence is clear that he or she did the deed, one has little choice but to try to justify their action. For that reason, the experience of many attorneys on both sides of the criminal justice system is that most persons pleading self defense were not lawfully justified.
    • Defending the self defense case is a specialty, and relying on a criminal defense attorney who does not have experience in that specialty is foolhardy.
    • In a use of force incident, a good guy can turn into a bad guy in an instant. That's the point of the discussions in the video about whether deadly force was "still justified".
    • Legally, a defender must prevail (show reasonable doubt) on every required element of self defense--every one of them.
     
  6. westernrover

    westernrover Member

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    With respect to the second scenario, the prosecutor misspoke. "Deadly threat" is not the standard for the use of deadly force.
    Nevertheless, he was trying to make a valid point with respect to whether deadly force would be justified after the kidnapper let go of the woman's hand while fleeing. Coloin shot the kidnapper before he let go, but had he let go first, the threat might have ceased at that point, if it were not for the wanton shooting of the cashier that would have made it reasonable to believe the threat was not over. I think that the prosecutor understands that kidnapping, hostage-taking, and rape are justifications for a response with deadly force. I don't think his understanding is wrong, but that he misspoke for the sake of brevity. Because of this language, I have some doubt whether he was aware at the moment that robbery is also justification for the use of deadly force.

    I believe this is in Texas, so I will use that state's code, but most states have similar statutes with respect to something like 'great bodily harm.' However, not all states are the same or similar in other respects.

    Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
    (1) knew or had reason to believe that the person against whom the force was used:
    (C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

    Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

    (1) if the actor would be justified in using force against the other under Section 9.31; and
    (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

    (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or
    (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
    Sec. 9.33. DEFENSE OF THIRD PERSON. A person is justified in using force or deadly force against another to protect a third person if:
    (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and
    (2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.


    In the first scenario, the man demanding from the cashier all the cash from the register while displaying a holstered firearm constituted aggravated robbery:

    Sec. 29.03. AGGRAVATED ROBBERY. (a) A person commits an offense if he commits robbery as defined in Section 29.02, and he:
    (2) uses or exhibits a deadly weapon;

    Was the guy on the couch justified in using or threatening the use of deadly force against the robber, even though the robber's firearm was holstered? It looks like aggravated robbery is enough justification for the use of deadly force in Texas.

    Was Coloin shooting the robber in the back unjustified? The commentary focused on whether the shot in the back could be justified as reasonable given the prior shots were justified, and Coloin might not have been reasonably expected to stop shooting in time. They discussed using an expert witness to testify along these lines. But under Texas law, could Coloin have been justified to start shooting an already fleeing robber? It's possible, but there are caveats.

    In the second scenario, Coloin shoots the fleeing robber in the back, and the commentary focused on this being justified because of the kidnapping and other active reasonable threats. Could Coloin have been justified shooting the fleeing robber in the back even if there was no kidnapping?


    SUBCHAPTER D. PROTECTION OF PROPERTY

    Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.
    (b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
    (1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
    (2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

    Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

    Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:

    (1) if he would be justified in using force against the other under Section 9.41; and
    (2) when and to the degree he reasonably believes the deadly force is immediately necessary:
    (A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
    (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
    (3) he reasonably believes that:
    (A) the land or property cannot be protected or recovered by any other means; or
    (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

    Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

    Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:
    (1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or
    (2) the actor reasonably believes that:
    (A) the third person has requested his protection of the land or property;
    (B) he has a legal duty to protect the third person's land or property; or
    (C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

    Generally speaking, property crimes are a risky justification for use of deadly force. It looks like under Texas law it can sometimes be justified. We should be careful not to jump to conclusions and condemn a shooter who nails a fleeing robber in the back as unjustified.
     
    Last edited: Sep 5, 2022
  7. Kleanbore

    Kleanbore Moderator Staff Member

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    The standard for justification is immediate necessity to defend against an imminent threat of serious injury or death. I do not have a problem paraphrasing that as a "deadly threat". His point is that if the threat does not involve the use or threat oo deadly force, then deadly force may not be used to defend against it.
    Ys--if codes do not cover that directly, the definitions of those crimes provide the justification, and so does case law in most jurisdictions.

    Justification for using deadly force for the defense of personal property is peculiar to Texas.
     
  8. westernrover

    westernrover Member

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    Which is incorrect, untrue and wrong, and that's why I pointed it out.
     
  9. Kleanbore

    Kleanbore Moderator Staff Member

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    It is the case in every US jurisdiction that if the defender lacks reason to believe that he is defending against a threat of deadly force, he may not lawfully employ deadly force in self defense. Fact.

    If you do not understand that, you should avail yourself of some relevant legal education.
     
  10. westernrover

    westernrover Member

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    We just read that in Texas, which is certainly a US jurisdiction, a person can use deadly force against someone committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. There is no requirement for there to be a threat of deadly force. Furthermore, we read that a person is justified in using deadly force against another to protect land or tangible, movable property if he would be justified in using force against the other when and to the degree he reasonably believes the deadly force is immediately necessary to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and he reasonably believes that the land or property cannot be protected or recovered by any other means. I agree this later justification is peculiar to Texas and not likely to justify deadly force many other places.

    Nothing about these justifications for the use of deadly force requires the threat of deadly force to be present or for their to even be a reasonable belief that such a threat is present.
     
  11. JohnKSa

    JohnKSa Administrator Staff Member

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    The listed offenses pretty much all involve the implicit or explicit threat of deadly force.
    As mentioned, TX property defense laws are a bit unusual. Also, staying on the legal side of TX law for defense of property is more complicated than most people assume from a simple read of the code.
     
  12. bdickens

    bdickens Member

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    "And" is a very big word in Texas PC Sec. 9.41. What this section of the law actually says is very different from what people want to think it does.
     
  13. westernrover

    westernrover Member

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    An implicit threat of deadly force is legally pretty vague. Fortunately, the video scenarios presented in this thread gave us a good example. In the first scenario, the person committing aggravated robbery has his firearm holstered. Does that constitute an implicit threat of deadly force? The commentators do not think so. Coloin is emphatic that "Seeing people carry guns, open carry, doesn't bother me." (4:48) What he means is that just because the guy is displaying a holstered firearm, Coloin isn't going to engage him with deadly force on that fact alone. He pinned his justification for engaging the robber not on beginning the act of robbery, but on the robber pulling his gun (4:56). The robbery had begun much earlier than the moment that Coloin believed justified deadly force. So did the beginning of the robbery "imply" deadly force? Or only when the robber drew his gun?

    The video editing cuts the scene and changes points of view several times at the critical moment, but the video does show the guy on the couch grabbing his gun first (1:36). Coloin mentions the guy on the couch engaging first (5:07). The prosecutor commenting on the scenario also seems to think there are questions about, "who provoked who, when it comes to the guy on the couch?" (5:45). It's apparent he believes the guy on the couch provoked the engagement of deadly force. He says at 5:51: "But there's going to be questions there that some lawyer is going to raise as far as 'look, he might be robbing the place, but that doesn't mean that he may not be privileged to use self-defense, and if that's the guy who is the legal person who is defending themselves, Coloin might be looking at, we got homicide charges now." The prosecutor here is supposing that the robber could be justified in using deadly force to defend himself against the guy on the couch and Coloin because they drew guns on him. He's claiming that the robber could be privileged to self-defense. This supposition is based on the idea that engaging the robber with deadly force was not justified because the robber's gun was holstered and his act of robbery did not imply deadly force and therefore did not justify deadly force in response. In fact, Texas law does not require the robbery to imply deadly force or to explicitly employ deadly force. In Texas, robbery itself is sufficient justification for the use of deadly force under 9.32(2)B.

    In this scenario, the actor purposefully avoided the explicit use of deadly force, until it might have been supposed by some to be justified as self-defense. Both legal commentators were aware that his open carry by itself did not constitute an implicit threat of deadly force. They did not seem to be aware that aggravated robbery itself, absent explicit or implicit threat of deadly force, is still justification for the use of deadly force under Texas law. It's evident from this thread that some respondents here are also under the false impression that the threat of deadly force is a requirement for the use of deadly force.
     
  14. westernrover

    westernrover Member

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    What do you think? Does a person demanding from a cashier all the cash in the register or your wallet while they have a holstered firearm on their belt imply the threat of deadly force?
    Under the laws of your state, would such demands constituting robbery without explicit threat of deadly force, justify the use of deadly force in response?
    If you drew your firearm and threatened the use of deadly force to stop a robber whose gun is still holstered, would the robber be privileged to self-defense?
    Would you be justified in shooting the robber whose gun is holstered while still in the process of the robbery (not giving up or fleeing)?
     
  15. JohnKSa

    JohnKSa Administrator Staff Member

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    You misunderstood. The offenses listed as justification for use of deadly force are, in fact, offenses that involve the perpetrator being a deadly threat to the victim. That is true whether the threat is explicit: "I'm going to kill you with this gun if you don't give me the money!" or whether it is implicit: "This is a robbery--give me all the money in the register." The fact that the threat is left unstated is irrelevant--the fact that it is a robbery means that a deadly threat exists. People don't simply empty the register and hand over the contents because of words--they do it to preserve their wellbeing. Out of fear of what will happen if they do not comply.
    You need to read the definition of robbery. You linked to it in an earlier post. If someone is committing robbery, then, by per the legal definition, they pose a deadly threat.
    This is a meaningless statement. BY DEFINITION, the victim of an aggravated robbery is being threatened with deadly force.
     
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  16. Blue Jays

    Blue Jays Member

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    Pretty cool how they induced a true "stressful adrenalized state" for the training exercise.
     
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  17. Kleanbore

    Kleanbore Moderator Staff Member

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    Well, it is, with the exception of some tenuous aspects of Texas Code Secion 9.42, which are peculiar to Texas, complicated, and irrelevant to the training scenarios at hand.

    If you want to learn that from authoritative sources, take Andrew Branca's law of Swelf Defense course or Massad Ayoob's MAG 20. I recommend both.

    And read and heed this.

    On the Cutting, Pasting, and Posting of Statutes

    Yep.
     
  18. westernrover

    westernrover Member

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    Is that right? How can we imply the threat is a deadly threat?


    Here it is:

    Sec. 29.02. ROBBERY. (a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:
    (1) intentionally, knowingly, or recklessly causes bodily injury to another; or
    (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.



    It looks like a threat or placement of fear of death is only one of three ways to commit a robbery. There are two other ways to comprise robbery without the threat of death.
     
  19. westernrover

    westernrover Member

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    Which have you taken yourself?


    Then I was right to point out that the commentators were incorrect in claiming the robber could be the legal person privileged to self-defense and that Coloin might have faced homocide charges. Two of them implied that engaging the robber before he drew his gun from the holster was unjustified. I say they are wrong because the demand for the cash constituted robbery and immediately justified deadly force to stop it. You say that the demand for the cash with the holstered gun implied a deadly threat and therefore justified deadly force to stop it. The robber drawing his gun was not necessary to constitute justification for the use of deadly force. The commentators, both Coloin and the prosecutor mispoke and were incorrect just as I pointed out.
     
  20. Kleanbore

    Kleanbore Moderator Staff Member

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    Both. plus much more.
    Self defense law is much more complicated than that. Avail yourself of some pertinent education.
     
  21. Kleanbore

    Kleanbore Moderator Staff Member

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    We should not be looking at this solely from the standpoint of which actions were lawful and which were not. That can be useful, there's more to it than that. tMuch of what the former prosecutor had to say pertains what might happen at trial. That would depend not on what is recorded on a high resolution video recording with high quality audio, but on forensic evidence and on what witnesses recall seeing.

    We see a defender who sees a violent armed robber, reacts, and uses deadly force to stop the crime and to defend himself and third parties. The triers of fact will hear witnesses who had been concentrating on other things when their attention was drawn by sounds, and by seeing people moving and doing things after the action had been well under way. The testimony may be ambiguous as it relates to whom was defended by whom who initiated the incident, and so on. The jurors will hear testimony regarding the number of shots fired and the timing, wounds, etc, and the defendant's statements, if any, at the scene, which could impact his credibility.. From that, the jurors may conclude that the robber had drawn in self defense, and that the defender's actions had not lawfully been justified.
     
  22. old lady new shooter

    old lady new shooter Member

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    Did somebody already post the difference between "robbery" and "aggravated robbery"? If not could we please have definitions?
     
  23. Kleanbore

    Kleanbore Moderator Staff Member

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    Varies according to jurisdiction. Not relevant to self defense law.
     
  24. JohnKSa

    JohnKSa Administrator Staff Member

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    1. It's a mistake to interchange common terminology with legal terms. That can lead to confusion and mistaken interpretations of the law.

    2. When it comes to reading the law, you have to start at the beginning and work your way up. You can't just jump into the middle of a section and expect that you will be able to interpret it properly. Each chapter generally starts with definitions and understanding those definitions, at a minimum, is important to correctly understanding the rest of the section.
     
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  25. Kleanbore

    Kleanbore Moderator Staff Member

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    The defense in a self defense case is generally not dependent upon the crime committed or attempted by the attacker, either in terms of specific charges ,penalties, or guilt or innocence. The self defense case stands on its own.
     
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