Man threatened with pliers is charged after drawing

[Michael Courtney]

I agree with your points. However, the point I was trying to make is that "perception is reality". If I, not "witnesses", perceive a threat, it is very real to me regardless what they say. Is this "reasonable" or not? His actions may not seem threatening to another 6'4" biker-type, but to me...............

Without witnesses all you've most likely got is one person's word against the other, and the tatooed biker-type is gonna look like a choir-boy in court.

The witnesses need not perceive a threat to themselves, but they had better agree that it was reasonable for the person pulling the gun to have perceived a threat.

"Perception" is not reality. From the point of self-defense law "reasonable" perception is reality. If a person feels threatened, but witnesses at the scene do not testify to facts that make a jury believe that feeling threatened was reasonable, a self-defense claim is gonna be tough to win.

A 6'4", 250 lb, tattooed biker type is screaming at me about taking his parking space. No weapon of any type showing (other than his size and apparent temper) I'm a arthritic little old man.

If you say the man was screaming, but witnesses don't characterize his actions that way, you're in trouble?

Do witnesses say the man was threatening or cursing, or was he just complaining about the loss of a parking space? Was he screaming out of anger or just talking loud so you could hear him above the ambient noise of traffic?

The reasonableness of your actions will be determined by the jury, and it is their perception rather than yours which will make for the cold harsh reality of a verdict. If there are no witnesses other than the actors, it is just one man's word against another, and if the "tatooed biker type" doesn't have a criminal record (or your lawyer can't get his record admitted), a jury could really go either way. If there are witnesses, they better give the jury the impression that the biker-type was a criminal agressor and you were just looking for a way out of the situation.

Michael Courtney

 

[deadin]

All points very true. The thing that bothers me is that the "I was in fear for my life" defense is pretty much trashed under these circumstances. I have to have witnesses that have the same "perception" of the situation as I do. (They're not being threatened, but I am. Perception is different, but very real to each. Once again, perception is reality. But reality can be different depending on one's point of view.)
Also, you used the phrase

and you were just looking for a way out of the situation.

Does this mean that I have an obligation to retreat or run before resorting to deadly force? I think in some States this is the case. (CA comes to mind)
"If you have an avenue of escape, you must use it" or some such wording.

I guess to be totally safe, I would have to let the other guy take the first swing or shot, as the case may be, to prove beyond a shadow of a doubt that he really is intending bodily harm.

Dean

Dean

 

[Michael Courtney]

Does this mean that I have an obligation to retreat or run before resorting to deadly force? I think in some States this is the case. (CA comes to mind)
"If you have an avenue of escape, you must use it" or some such wording.

Kepp in mind that we are not discussing when it is justified to use deadly force (shoot someone in self-defense), but rather when it is justified to threaten deadly force (pull a gun in self-defense.) If you draw a gun in a situation where threatening force is justified, but using deadly force is not, your next move is best to remove yourself from the situation as quickly as possible for two reasons:

1) You do not want the criminal forcing your hand either figuratively ("What you gonna do, shoot me?") or literally (by charging you and starting a wrestling match).

2) If you draw and then retreat, you've got tangible evidence that your intent in drawing was not an escalation or confrontation, but rather to give yourself an opportunity to retreat from a situation where you felt threatened.

I guess to be totally safe, I would have to let the other guy take the first swing or shot, as the case may be, to prove beyond a shadow of a doubt that he really is intending bodily harm.

Most states require a perponderance of the evidence for a self-defense claim, rather than beyond a reasonable doubt. But the evidence needs to show that a "reasonable" person in your same situation would have feared bodily harm (or whatever other crime would justify the level of force deployed).

There are some ways where one can improve one's defensive situation (both legally and tactically) without opening oneself up to a charge of aggrevated menacing. If you draw the gun but keep it where the threat cannot see it, your response time to an overt threat (an attempt to close the distance) will be much faster, but it cannot be construed as aggrevated menacing unless there is evidence you intended the person to see the gun. It is also a good idea (legally and tactically) to gain distance (retreat) and move behind cover. More distance means more time to react. Cover means the bad guy has to go around or over obstacles before harming you.

Retreating is not a legal requirement in many states, but in ambiguous circumstances it can help to clarify the criminal intent of the bad guy if he persues. If ability, opportunity, and intent are already clear to all the witnesses, there is no need to retreat in states without a legal requirement to retreat.

However, in the circumstance you mention with a big biker guy screaming at you over a parking spot, even if ability and opportunity are quite clear, the question of intent remains ambiguous unless there are verbal threats or the biker guy attempts to close the distance. Ambiguous intent leaves room for reasonable men to disagree, and this could be a problem for a jury. On the other hand, if you retreat a few steps and move behind a parked car, then the bad guy's intent is much clearer if he chases you.

Michael Courtney

 

[Duffy1]

Erebus said -"That's hearsay and useless in court. They have to have signed affidavits from witnesses or put their butts on the stand."

The incident was in a public place - a mall - you know - lot's of people. You don't think there were witnesses? And by the way, your statement is incorrect - unless of course you can show us where the law states it's required, they don't need signed affidavits. And no, there really don't have to be witnessess - circumstantial evidence can make the case - like the cameras at banks, malls and other public places to record incidents and then there is the physical evidence - one guy with a gun and another with - what's that? - a pair of "deadly pliers"?. And, if there are no witnessess and no camera's the police can make an arrest based on the interviews they have with the two involved in the fracas. While I think this is a terrific thread and raises our awareness of the issue there is a lot about the law and carrying that, IMHO, alot of folks don't know. The bottom line is to use common sense, pick your battles i.e. pull your gun if the situation is truly life threatening and you don't have an alternative. Ignorance is no excuse, jail is for years and dead is forever.

 

[PCGS65]

Everything is a "deadly weapon" if used in such a manner. One has a right to defend themself no matter what.
If that guy used pliers in an offensive way against LEOs they would certainly draw their firearms............