Liability of self defense shooting

Discussion in 'General Gun Discussions' started by Impureclient, Feb 5, 2009.

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  1. mljdeckard

    mljdeckard Member

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    And remember, no matter what law says you are immune from anything, all it takes is a lawyer who will motion for it to be heard, and a judge who has been sleeping on the couch to get it into court anyway. Anyone can challenge anything. The odds are it will eventually be thrown out or overturned on appeal, but that doesn't make your life any easier. (Or save you any money.
     
  2. alsaqr

    alsaqr Member

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    In the 20+ years this law has been in effect in OK it has not happened one time.
     
  3. 1911Tuner

    1911Tuner Moderator Emeritus

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    Force

    There's also a provision for disparity of force, however.

    If you're 65 years old, 160 pounds, and arthritic...and the attacker is 25, athletic and bumps the scales at 230...you can use whatever force is deemed necessary to prevent the ensuing beat-down, because the reasonable man would assume that it would result in serious/crippling and possibly lethal injury.
     
  4. BullfrogKen

    BullfrogKen Moderator Emeritus

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    The elements of self-defense, as we laymen understand them, can be present without meeting a legal standard of justification. The notes Lee Lapin linked are what I use to familiarize myself with the process.


    Anyone charged with a crime is presumed innocent until proven guilty. That doesn't mean you will always be treated as if you were innocent through the process. Also, keep in mind that self-defense is an affirmative defense. Meaning, in order to claim the elements of self-defense, the defendant must first admit to committing the act. Then he has the burden of showing why his action were justified and not a criminal act, and persuading all those involved in the process to see it that way.

    If those involved in the process don't believe the elements of self-defense and justification exists, then the defendant's going to have a tough time being found not guilty of a crime. Because again, to make that defense you must not only admit that you did it, but that it wasn't an accident or unintentional. If the finders of fact don't believe your actions were justified, about the only hope you have of getting away from being convicted is jury nullification.
     
  5. ar10

    ar10 Member

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    The "those involved" could be anyone, the criminal, the family, the girl friend, or anyone else who's looking for money. What gets me is inmates have better law libraries than some of the best lawyers around, they have plenty of time and "clerks" working for cigarettes to do the research. Most of the cases are deemed "frivolous" but the victim still needs the attorney to represent him/her in court and they are not cheap.
     
  6. si vis pacem

    si vis pacem Member

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    Inmates may have access to a law library, but most of their motions and complaints are incoherent or untenable under the law. Thankfully, even the greenest attorney would have no difficulty getting the complaint thrown out of court at minimal billable hours. There are also several laws regulating the inevitable deluge of "litigation" from inmates.
     
  7. Bookworm

    Bookworm Member

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    Most folks don't have the extra money to have an attorney on retainer - or even have cause to deal with an attorney at all.

    Are you going to sit there in the police station - after being cuffed, searched, your possessions confiscated, etc and refuse to discuss the event and demand they provide you with an attorney? You're in for a long, long wait - like weeks in jail at the least.

    I wonder if I had a justified shoot if it would not be best to simply walk away, and pay for a consultation with an attorney ASAP to discuss the event. This is assuming you didn't have an obviously justified shoot that occurred in your home, of course.
     
  8. eye5600

    eye5600 Member

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    In this modern day and age, you may have two phones. Call 911 on one, and your lawyer on the others. Or, if there is someone else present, have him/her make the other call.
     
  9. ar10

    ar10 Member

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    Agreed, many are, (2" long finger nail, Santa Claus not allowed on prison grounds, etc) but many others are not. The way the "system" works is inmates get hired as library clerks, their profile is usually college educated, non-violent offenders, and are scared to death of the less civilized inmates. A dominate inmate will "hire" a clerk for protection and/or boxes,(cigarettes) to read his "pocket" (official record and trial info), these are restricted but inmates also staff the records office. The clerk will go through the pocket, take notes on everything then proceed to explore every possible error in the documents. He/she then searches every law book he can to find a precedent that can be used in court for an appeal or civil litigation.
    These people have much more time than money, they are very literate, well educated and know how to work the system. Lawyers on the outside need to know what they're doing.
     
  10. GRIZ22

    GRIZ22 Member

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    If you shoot and kill a BG are you immediately considered at fault no matter what the situation
    may have been?


    There are too many variables to make a blanket statement in response to your question. Each situation is different and how you will be treated by police or anyone else will differ also. I'll try to give you diverse examples.

    BG in a mall pulls out a gun and starts shooting whoever he can and you shoot and kill him. In addition to be being recorded on security cameras there are dozens of witnesses backing up your story. Can the dead BG's family file a lawsuit? they sure can. I can make something up and file a lawsuit against you right now. Would either get very far? Not very likely, a judge reviewing such a frivalous lawsuit can throw out a complaint as having no merit.

    In another scenario, 6 thugs who are built like linemen come up to you and demand your wallet. You refuse are thrown to the ground and they all try to kick the stuffing out of you. You shoot one and the others run off. No witnesses. The five later say you just walked up and shot their buddy. You are most likely going to be facing crimianl and later civil charges.

    Ther is no blanket answer.

    Well immediately calling after the police anyways

    Always call the police first. This helps establish you as the good guy. You can refuse to answer questions and get a lawyer later.

    I know of an attempted carjacking where the bad guy approached the good guy first by asking him for a ride. As the Bg was trying to get his weapon out the good guy was faster, the bad guy saw the gun, and the badguy ran off. The good guy reported this to the police and being that no one came in complaining some guy pulled a gun on him when he asked them for a ride nothing happened.

    As far as your shooting the dog question i don't know FL law.
     
  11. lanternlad1

    lanternlad1 Member

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    Let me just say this...

    DO NOT EVER TALK TO THE POLICE. EVER. EVER. EVER. Not even when you get pulled over by Highway Patrol.

    ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU IN A COURT OF LAW.



    http://www.youtube.com/watch?v=i8z7NC5sgik
    http://www.youtube.com/watch?v=08fZQWjDVKE&feature=related



    Bill Clinton was not impeached for having sex with Monica, HE WAS IMPEACHED FOR LYING TO CONGRESS.

    Martha Stewart was not jailed for insider trading, SHE WAS JAILED FOR LYING TO FEDERAL INVESTIGATORS.

    These are people who have a lot more power and money than you do, and it still came back to bite them. KEEP YOUR YAP SHUT.

    The cop may be sympathetic, but the D.A. won't be. He/she gets raises and promotions based on how many people they put away.

    75% of people in prison put themselves there by opening their trap.
     
  12. rscalzo

    rscalzo Member

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    Way tyo braod to even get an answer. Are you the individual that committed the homicide? Yes, that isn't in question. Beyond that, the facts will determine the outcome.

    If you really think that this will stop a criminal prosecution you should rethink it. While the statute might be helpful if it is clearly a self defense issue, that can vary greatly by a case by case basic. sitting back thinking nothing is going to happen as far as the courts are concerned is jam packed with danger.

    As far as the civil suits, they still get filed. If dropped within a short time, the costs are still expensive. A friend lost everything because the waiver that was foolproof was thrown out after the courts got a hold of it.

    Training and a extensive knowledge of the law and the cases that come afterwards are all that keep one out of trouble.l
     
  13. Rush

    Rush Member

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    If I had to shoot a BG and he were lying in a puddle of his own blood I would NOT assume he was dead. I would NOT assume he does not have buddies coming looking for him. I would NOT check him for a pulse. I would stay out of reach of him. I would keep my weapon out, keep him covered, and scan the area for his friends. I would dial 911 as expeditiously as I could, and ask for "tactical backup". :D JK; I would state my name, my location, and that "someone just tried to kill me and I need help immediately. I need to put the phone down but I will leave the line open." Then I would set the open phone down and return to my two handed grip and continue keeping my attention on the BG and on looking and listening for any other potential threats.

    I would NOT put my attention to fumbling for a lawyer's card and calling my lawyer. Depending on the exact circumstances I might remove myself to somewhere safer. If I needed to stay covering the BG then before the police arrived I would lay the firearm down far from the BG, at the point in time where the risk of the police mistaking me for a BG becomes greater than the risk the BG is playing possum. Under adrenalin situations there would be no way in hell I would trust my judgment that a still, bleeding body could not revive and renew the attack, no matter how decimated it appears to be. And no way in hell I will assume the shots scared away any buddies I heretofore hadn't seen.

    If this were a public shooting with witnesses, after assessing that no other threat existed, I would holster my weapon and then make sure no one else is hurt. Likely someone else is already calling 911 in that case.

    The only thing I'm debating with myself is whether I should unload my 1911 before the police get there.... I really don't trust them not to accidentally discharge it.... :p
     
  14. Mello

    Mello Member

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    First, there are two major aspects to the U.S. legal system. Criminal and civil. The level of proof required by the state to prove you guilty of a crime is beyond a reasonable doubt.
    The burden of a plaintiff in a civil suit is usually a mere preponderance of the evidence. Just a fraction of a percent more proof and that side wins.

    Now on to your first question: You are not "immediately considered at fault no matter what the situation may have been". However, if you admit to the homicide (the taking of a human life) and assert the defense of self-defense; then the burden of proof shifts to you to prove that you were reasonable in the use of deadly force. Each jurisdiction has its own "magic words" which are used in its jurisprudence. Some crime scenes are more favorable to proving your claim of self-defense than others. There are an infinite variety of "what ifs" you can go through here.

    Second question: "If you were defending your life or another life you are considered guilty until proven innocent?" That is asking the first question in a different way. You are not considered guilty until the verdict, however, the burden of proof to prove you are not guilty is on you.

    Third question: "Or is that just to cover your butt in case you say something dumb to incriminate yourself?" It is better to cover your butt before you say something stupid, rather than after. Many people get 'motor mouth" when they get nervous. Police use that to get people to talk. Under the rules of evidence anything you say can be used against you. The police will write down everything you say, or what they think they remember you to have said. One inconsistent statement can be used to make you look like a liar. This is the first step to you being convicted of something you did not do. If the police arrive within 15 - 30 minutes of a shooting where you have had your life at risk and used deadly force to kill a person, I would guess that most people would be suffering from the physiological effects of the adrenalin dump which your body produced in the fight or flight response. You will have a hard time thinking and remembering accurately. Telling the police that you do not want to make a statement until you have a lawyer gives you time to calm down and to discuss what you remember, get advice and maybe have the lawyer point out inconsistencies.

    Fourth question: You have the right to an attorney and if you can not afford one, one will be provided. (Miranda) It is likely the one provided will be an overworked public defender (bad for you). If you have $$ and get a good experienced criminal lawyer that has experience in your sort of case; you will need to pay him/her a significant retainer. Duke of Doubt appears to be a criminal lawyer and can speak to this aspect of a criminal law practice.

    The foregoing was all about the criminal side of the aftermath of a homicide. The civil side is different and also costly. If you are living from paycheck to paycheck and have no assets, you are judgment-proof. If I remember correctly you cannot discharge in bankruptcy a judgment from a cause of action (such as an assault and battery) for an intentional act.
     
  15. Kat144

    Kat144 Member

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    Is there a list of those states somewhere?

    I always worry about this. I'd sorta rather be dead than in debt up to my eyeballs for the rest of my life, or spending my life in prison. I'm quite concerned with the QUALITY of my life as much as the QUANTITY. I'd rather be dead and oblivious than alive and miserable for decades and wishing I'd just taken a shot to the head. The problem would be in cases where I might be attacked and NOT die, or where someone I cared about was attacked.

    I've often felt, though, that as a small, young-looking woman (I *look* barely old enough to have my driver's license, and very innocent--or perhaps you could call it "defenseless"--to boot), I probably look at self-defense a bit differently than many of the men here, judging from comments in some of the threads. I'm a bit more serious about threats--while some of the guys here could probably afford to take the "well, I'll see if he throws a punch then I'll act" stance, I can't--both because someone might be more likely to get physical sooner (thinking I don't look like I could do them much damage so they have nothing to lose) and because one punch from a guy could potentially cause me serious injury if I didn't manage to dodge out of the way--there's no way I could probably hold my own in a fistfight with even an average-sized man. I've read about scenarios here that featured a threatening stranger where the person telling the story wasn't all that concerned, but if I were in the same scenario I'd have one hand ready on my gun and the other would be dialing the police as fast as my fingers could hit the phone buttons.

    I've also wondered how it would go down in court for me if I did have to defend myself. I'm thinking it might go better for me because it'd be pretty obvious to a judge and jury that I'd be stupid to try to punch out a big BG rather than use more deadly force at my disposal.


    I don't support anyone but myself, so no loss there. Actually, if I were dead, my mom would be BETTER OFF financially because she'd have my life insurance money. So that's only an argument for those with families to support.


    Or what if he's down, but not dead--i.e. you got him stopped and now need to run to someplace more safe? You'd need to, at least, let the 911 operator know that you're in one place, the BG is in another. And, you probably need to let them know to send an ambulance--the last thing you want in court is them saying, "if you'd SAID he needed an ambulance rather than the police calling one when they arrived, the BG would not be dead..." I wouldn't want to have to talk my way out of that one.


    Another thing I keep wondering about....has there ever been anyone who's been attacked by a BG, defended themselves, and then have the BG's friends (or BG himself, if he's not dead) come after them? I mean, I imagine that wouldn't be hard to do---stuff like that must be splashed across all the papers, along with the name of the person who did the defending.
     
    Last edited: Feb 6, 2009
  16. boatme99

    boatme99 Member

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    1.never talk to police w/o lawyer! "What you say CAN be used against you."
    2. If you're in Fla., get Jon H. Gutmacher, Esq's. book Florida Firearms-Law Use and Ownership, Sixth ed. and read it cover to cover!
    All the answers are there. It should be required in Fl. for the ccw test. I also wish there was a similar book for every state. I keep one by my bed and one in my vehicle.
     
  17. ar10

    ar10 Member

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    3. Or pay the retainer to a damn good criminal lawyer.

    I think it's good to post the question. I also educated myself before I ever decided to carry a gun. I think a lot of CCW'ers don't have a clear understanding of what it entails or the results if they end up shooting someone. "We" are not cops, or "rambo's", and so far the US is not in a state of anarchy yet, (I hope never). Carrying a gun is no more than protection for yourself and your family, and I think many states legislatures know that. Cops also know they can't be everywhere all the time and, with the economy in the toilet, they are understaffed. Hell here in Columbus they just laid off the entire graduating class from the academy last week.
     
  18. JImbothefiveth

    JImbothefiveth Member

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    I'd say call 911 first. You might still be in danger, so having police protection would be good. Also, if you shot someone, get the ambulance on the way, hopefully they'll survive.

    I think I'd also ask the police to not release my name, and explain that that's the reason why.

    I might also tell the 911 operator what I look like, so the police don't mistake me for an armed criminal and shoot me. (If I shot a gun, especially indoors, I might be deaf and unable to hear the police.)

    It's called bankruptcy. You still get to keep your job, and sometimes a lot of your stuff.
     
    Last edited: Feb 7, 2009
  19. Kat144

    Kat144 Member

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    And never get a loan again...

    And, I'm not sure if that's the sort of bankruptcy that wouldn't make me lose my job, or not. On one hand, it's not like it's because you maxed out your credit cards shopping. On the other hand, it's because you shot somebody...
     
  20. skwab

    skwab Member

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    First off - Kat 144 - your concerns certainly make sense - for you I would certainly suggest (and you may already have some) a good OC spray - you're not going to go to jail for spraying someone because you felt threatened, and after you spray them if they continue to be a threat then you can draw your weapon - but that would give you non lethal option in the event you feel uncomfortable because of your stature but you weren't so uncomfortable that you thought deadly force would be needed - just a thought.

    On a separate note - if you shoot and kill a BG you are guilty of that shooting. That won't be the question. That won't be disputed. The question will be whether or not that shooting was justified, and it will depend on where you are, your state laws, who the DA is etc etc - a lot of things that are out of your control. That is why it is extremely important that you say nothing, because even the most innocent, benign sounding statement off hand to an officer or a bystander who makes a statement to an officer can come back to haunt you. Depending on where you are you may be treated like a criminal, maybe not. But IMO it's not really an innocent until proven guilty situation, because you are guilty of shooting someone, and it is up to you to prove that it was self defense. It will depend on the circumstances on how obvious that is or not, and how you will be treated.
     
  21. philip964

    philip964 Member

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    The comments about not saying anything, is very important. Calling for an ambulance for the dead or dieing BG seems like a good idea.

    In Texas a lot depends on whether it was at night or not.

    The man in Pasadena who made the news last year, shot the BG's in the day time. If it had been at night, it might not have even made the local news.

    He was no billed by the Grand Jury, but I bet it cost a lot of money and some sleepless nights. If he had done that in about anywhere else in the US, I don't things would have come out as well for him.
     
  22. RP88

    RP88 Member

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    never go by that 'call your lawyer' crap.

    Call the police, and tell them as specifically and simply as possible what happened when they show up and ask, then decline all other statements. Or better yet, just stick to saying that 'shot to stop' or nothing at all and say that you would like to wait until your lawyer is present in order to make a statement or go further. You are allowed to do that.
     
  23. Hungry Seagull

    Hungry Seagull member

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    In Arkansas, we are to avoid if carrying. In our Homes no retreat is possible, therefore Castle Doctrine is in effect.

    If you shoot intruder in this state inside your home; and you are NOT charged or indicted for the crime, the Surviving badguy (Invader's) family cannot touch you civil court.

    There will be a much different future for you and all of your life, friends etc because of the life taking at the time.

    Most of the time the intruder dies and the homeowner is not charged as long as everything is in order and we hear nothing more from that. And as we say "That is that."

    If you have not thought about and are not prepared to accept the consenquences for taking another life with a gun, dont do it.

    We are armed because we refuse to be on our knees inside our own home begging some two bit teen with absolutely nothing gainful to contribute to society for our lifes which we have lived. No. We choose to exercise our rights as Citizens, not subects and will defend outselves.

    Anyone busting that door at any time (Other than LEO..) stand with thier lives at grave risk. But one thing was clear... dont shoot in the back if the BG turns to leave or retreat. I believe there was a case recently where a man grabbed shotgun to get to his gf who was at EX's house, EX with rifle shoots shotgun man dead from porch while shotgun man has already saw that he did not have chance and was retreating off the ex's property. That was murder. And rightly so.
     
  24. SCKimberFan

    SCKimberFan Member

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    Are you an attorney? You know this how?

    If I believed all this I would never carry, much less use a gun.
     
  25. freewheeling

    freewheeling Member

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    When I lived in NJ in 2006 there was an incident in Trenton (I think) where a fellow was being mugged by a number of aggressors, and he was carrying concealed in direct contravention of NJ law. It came as quite a surprise to the muggers, and I think he killed at least one of them. NJ chose not to prosecute him even though he'd clearly broken the law, very probably because the public notoriety would have redounded to the benefit of pro-Second activists in the state, and that was about the last thing they wanted.

    I don't think he was hassled by a civil suit either, for about the same reasons. If there'd been any ambiguity about his justifications he'd probably have paid pretty dearly, however.
     
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