Perfect example of a gun used as a deterrent: Man saves Jewish family from hate attack

[danez71]

If your post was intended as a reply to mine, you misconstrued what I wrote

I understood your abundantly clear question. Rather than hypothetically comparing apple and bananas, lets look at the law in FL that @Jimbo80 posted the link to.

776.012 Use or threatened use of force in defense of person.—
(1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

Focusing on #2
I would consider rape to fall within "great bodily harm" as well a potential for "imminent death" during the commission of said rape.

However, the totality of the circumstances needs to be looked at and the article is short on details.

For example <purposely exaggerated>

1) was the threat made from down the street a bit while driving away throwing trash her direction or
2) was the threat made while agressively boxing her into a confined area or agressively trying to separate her from others or maybe while grabbing at her clothes?

If I were on a jury, example #1 might be a tough sell but the examples in #2 might be closer to a 90% off coupon at DQ.

 

[Kleanbore]

wonder whether there is case law as to where the line is drawn between "insults" and "threats".

No.

 

[danez71]

...it seemed possible that there might be some case law distinguishing between an "insult" vs a "threat".

I don't see the logic in answering 'No' to that.

Here's some info that may help. These cites cases on that topic.

https://www.heritage.org/the-consti...d-the-limits-first-amendment-protection#_ftn6

https://ilw.com/seminars/Harms Not Rising to the Level of Persecution Case Chart.pdf


This one is a bit different as it seems to hinge on a personal or professional relationship between the two

https://www.justia.com/trials-litigation/docs/caci/1600/1602/

 

[Kleanbore]

it seemed possible that there might be some case law distinguishing between an "insult" vs a "threat". My question arose out of the specific facts reported about this incident, but if you prefer a different example, Mr 6'3" 255 lbs with the BJJ logo mentioned elsewhere says "I'm gonna tear you limb from limb", is that only an "insult" or is it a "threat"?

The utterance of a threat, even a credible one, would provide justification for the use or threat of deadly force if and only if the defender had a basis for a reasonable belief that the treat pertained to an action to be carried out right than and there--and if and only if defender reasonably believed that the person making threat had the ability and the opportunity to carry it out, right then and there.

 

[BigBore44]

Deadly force laws are not a "recipe" for how to cook up a legal shooting. Deadly force laws are there as a safety net. Looking at them as a laundry list where once all the proper items are checked off, one can open fire creates confusion because that philosophy is not consistent with the general principle of deadly force laws.

Imagine being in an airplane that is taking off. You have been provided a parachute for use in case it becomes obvious that a crash is imminent. The flight crew provides a briefing explaining when it would be appropriate to jump out of the aircraft and how to use your parachute.

Do you keep pestering them throughout the flight? Can I jump out of the plane now? What about now? We had some turbulence, can I use my parachute now? The pilot looks a little peaked, can I jump now? I heard that guy across the aisle use the word "crash"--now can I jump? You said if our engines went out, we should jump--I think that one sounds funny, so can I jump?

Of course not. That's not the point of having a parachute. It's a contingency to be used only in extremis.

A defender does what is absolutely necessary to prevent serious injury or death and then trusts the deadly force laws to prevent the justice system from applying punishment for committing an act that would normally be a heinous crime.

The same general principle applies to the use of force that is not deadly force.

Displaying (but not pointing) a gun in my state is considered to be a use of force but not a use of deadly force. If I displayed my self-defense handgun without the proper justification, it would be a crime. In other words, I would only do that if I felt there were no other good options available to deal with the situation. If things escalated, I might also shoot if I felt there were no other good options for preventing serious injury or death. Then I would hope that the legal system saw the situation the same way I did when I made my decision.

I hate when people take individual sentences or verbiage and try to dissect it for the sole purpose of winning a discussion. So I want to try and address more just just a quote.

Deadly force laws are not a recipe to cook up a legal shooting. But they do spell out requirements that must be met in order for the shooting to be deemed justified by the DA or grand jury. There has to be a reason why those specific requirements were put into the law. Why do you believe those specific requirements were spelled out? Could it be so people were made to think before they drew and/or discharged their weapon? The person cannot just draw and fire because they are nervous. They must believe (not just state) that their life or the lives of others are in serious danger. It would appear that was part of the intent of Garner. To give the officers an engrained mental “checklist” of when they can and cannot use deadly force against a fleeing suspect. An officer who has just tried to apprehend an unarmed non-dangerous suspect, but failed to effect the arrest, cannot shoot that suspect as he runs away.

 

[BigBore44]

An insult is not a threat. They are two separate words with two separate definitions. So the answer is actually yes. There is no such thing as an “insult” of serious physical harm. But there is certainly a “threat” of serious physical harm.

 

[danez71]

I hate when people take individual sentences or verbiage and try to dissect it for the sole purpose of winning a discussion. So I want to try and address more just just a quote.

Deadly force laws are not a recipe to cook up a legal shooting. But they do spell out requirements that must be met in order for the shooting to be deemed justified by the DA or grand jury. There has to be a reason why those specific requirements were put into the law. Why do you believe those specific requirements were spelled out? Could it be so people were made to think before they drew and/or discharged their weapon? The person cannot just draw and fire because they are nervous. They must believe (not just state) that their life or the lives of others are in serious danger. It would appear that was part of the intent of Garner. To give the officers an engrained mental “checklist” of when they can and cannot use deadly force against a fleeing suspect. An officer who has just tried to apprehend an unarmed non-dangerous suspect, but failed to effect the arrest, cannot shoot that suspect as he runs away.

Agreed. Using an analogy such as kids repeatedly asking 'are we there yet, can I get out of the car now' everytime the car slows down but leaving out the part that they've actually turned down grammas street is a bit perplexing, at least to me.

 

[danez71]

An insult is not a threat. They are two separate words with two separate definitions. So the answer is actually yes.

Yes, the answer is Yes unless we're reimagining the definitions of the two words.

 

[Kleanbore]

I hate when people take individual sentences or verbiage and try to dissect it for the sole purpose of winning a discussion

That was uncalled for. John was trying to explain an important point

QUOTE="BigBore44, post: 11942193, member: 200978"]The person cannot just draw and fire because they are nervous. They must believe (not just state) that their life or the lives of others are in serious danger.[/QUOTE]That's [ert of it.

The other part is that the belief must be reasonable.

It will be considered reasonable if reasonable persons in similar circumstances, knowing what the actor knew at the rime, would have done the same thing.

An insult is not a threat. They are two separate words with two separate definitions. So the answer is actually yes. There is no such thing as an “insult” of serious physical harm. But there is certainly a “threat” of serious physical harm.

That verbal distinction is irrelevant in this context. What is important is the basis fo ra reasonable belief that there an imminent danger of death or serious bodily harm.

The mere making of a threat is not sufficient to support such a belief, and a failure to articulate one would not render such a belief unreasonable

the answer is Yes

The answer as it pertains to relevant case law is NO.

 

[danez71]

The answer as it pertains to relevant case law is NO.

Using the links I provided and Internet searches, I disagree.

 

[Kleanbore]

Using the links I provided and Internet searches, I disagree.

Feel free to do so.

The links you provided pertain to the Constitutional protection of speech.

The discussion at hand is about use of force law. Different animal entirely.

Evidence regarding specific statements made during a a particular incident may certainly be considered by the triers of fact assessing the reasonableness of a defendant's belief.

That is not case law.

Regarding the Florida case, we have only news reports. They speak of words and utterances. Alone, they would not suffice as justification. But we do not have a complete picture.

Some years ago, when Florida's concealed carry law was rather new, the Florida AG made it clear that the threatening display of a weapon in a defensive incident that did not an immediate need for the use of force was a serious crime. There were mandatory penalties, and a number of horror cases.

I have not kept up with that aspect of Florida law.

 

[BigBore44]

That was uncalled for. John was trying to explain an important point

That statement was not an insult to John at all. I was speaking in a general sense that I hate when people do what I stated. So I was trying to address more than just one snippet of his post. If you or John took it as an insult, it was misinterpreted. Also, I understand his intent with the example of the plane and passenger. It’s just very difficult to make an accurate analogy without including the use of a firearm because of the dynamics firearms bring to the table.

The other part is that the belief must be reasonable.

It will be considered reasonable if reasonable persons in similar circumstances, knowing what the actor knew at the rime, would have done the same thing.

I agree 100%.

That verbal distinction is irrelevant in this context. What is important is the basis fo ra reasonable belief that there an imminent danger of death or serious bodily harm.

No. It’s not irrelevant. There is a distinction between the words and their meanings. That, and @danez71’s post show there is also a legal distinction. If I walk up to somebody and say “You're the dumbest bleep, bleep, bleep I’ve ever seen”, they cannot legally shoot me. But if I walk up to that same person with a baseball bat and tell them I’m going to bash their skull in, I would shoot me (in Oklahoma). One is an insult. The other is a threat. Depending on the state and whether there is a duty to retreat in that state, one may be justified in the use of deadly force in scenario 2.

In the case of @old lady new shooter, the 6’3” 255lb man in the BJJ shirt who threatened (not insulted) to tear her limb from limb “may” also be justified depending on his proximity to her at the time the threat was made and also whether he was approaching her while making, or after said threat, was made. There was a threat of serious physical harm. And the guy has the ability to carry out that threat. Although actually tearing a person limb from limb with your bare hands is a very difficult task.

 

[danez71]

Feel free to do so.

The links you provided pertain to the Constitutional protection of speech.

Not all of them.

Regarding the Florida case, we have only news reports. They speak of words and utterances. Alone, they would not suffice as justification. But we do not have a complete picture.

I said that earlier. (Referring to 1st and 4th sentence)

Some years ago, when Florida's concealed carry law was rather new, the Florida AG made it clear that the threatening display of a weapon in a defensive incident that did not an immediate need for the use of force was a serious crime.

My examples illustrated a difference and it seems that what your referring to would bolster that there IS a difference between insults and threats which is what the question was.

 

[Kleanbore]

there IS a difference between insults and threats

Of course there is. That goes without saying.

....which is what the question was.

No, it was not.

The question was whether there is, in case law relevant to the lawful justification of the threat or use of deadly force, "a line... drawn between "insults" and "threats" ".

Again, evidence presented at trial regarding specific words that were spoken, may, in combination with other evidence regarding ability, opportunity, and other actions, influence a jury's decision regarding reasonableness--in the case at hand.

Case law is something else--a ruling by a superior appellate court that is subsequently treated as law in the courts.

To have case law in the criminal courts, there must be (1) a conviction in a trial court; (2) an appeal to a higher court based on a dispute on a particular point of law; and (3) a ruling by the appellate court or courts on that point of law.

 

[danez71]

Of course there is. That goes without saying.

No, it was not.

The question was whether there is, in case law relevant to the lawful justification of the threat or use of deadly force, "a line... drawn between "insults" and "threats" ".

Again, evidence presented at trial regarding specific words that were spoken, may, in combination with other evidence regarding ability, opportunity, and other actions, influence a jury's decision regarding reasonableness--in the case at hand.

Case law is something else--a ruling by a superior appellate court that is subsequently treated as law in the courts.

To have case law in the criminal courts, there must be (1) a conviction in a trial court; (2) an appeal to a higher court based on a dispute on a particular point of law; and (3) a ruling by the appellate court or courts on that point of law.

If you read what I linked to, youd see that the conviction of threat of violence was appealed on 1A grounds and was determined to be outside of 1A protection.

Theres another example out of the 9th CA. Same basic scenario. Determined to be more than shaming/insulting and fell into threat.

https://www.law.cornell.edu/constitution-conan/amendment-1/threats-of-violence-against-individuals


I do appreciate your effort to try to clarify your simple 'No' answer.

 

[Kleanbore]

There have been a number of cases in the LoSd Blog about persons who reached for their guns and ended up in a lot of trouble. We have not yet heard about anything along those lines in the Florida case, and I hope we don't.

My first rule is to not display a firearm unless I am convinced that it is absolutely necessary to do so. My second rule is to be the first to report it if it occurs.

The incident in Bal Harbor is--scary, to say the least. There are similar things happening all over the country. This is a great time for a breakdown of law and order.

Potential victims--and we are all potential victims--need to watch out, and be able to fend for themselves.

More and more people seem to be realizing that these days.

I get my haircuts in an establishment that has a lot of Jewish clientele. I do not recall hearing ladies arriving for a tinting treatment responding to "may I hang up your jacket" with "no, I'm carrying", before the last several months.

 

[Kleanbore]

If you read what I linked to, youd see that the conviction of threat of violence was appealed on 1A grounds and was determined to be outside of 1A protection.

I did.

Not at all related to the legal defense of self defense.

 

[danez71]

I did.

Not at all related to the legal defense of self defense.

I didn't say it was.

Differentiation specifically of valid threat vs not in appellate court.

 

[Kleanbore]

I cannot overemphasize the importance of having a good, deep, and broad knowledge of use of force law these days, whether one carries or not.

The sad fact is that politically influenced decisions to prosecute and to not prosecute are becoming more and more common. Criminals know that.

That mean that the likelihood of one's having to defend oneself has increased, and threat the legal defense of self defense may be a lot more difficult.

 

[Kleanbore]

Differentiation specifically of valid threat vs not in appellate court.

Has to do with First Amendment Rights--only.

That distinction has never been seen as relevant in justifying a reasonable belief of the immediate need for deadly force--actually. the attacker need say nothing at all, and words alone, whatever they be, are insufficient,

Old Lady New Shooter's question had to do with the possible existence of relevant case law relevant to the justification of the display of a weapon.

Should there be a case stemming from this inc9ident,, the choice of words, combined with other evidence, may prove important at trial, but that would be due to the jurors' understanding of basic English, and not to a 9th Circuit ruling on the First Amendment.

We won't know about it, though.

 

[danez71]

I did.

Not at all related to the legal defense of self defense.

https://lawofselfdefense.com/law_case/state-v-dial-248-s-e-2d-366-nc-ct-app-1978/

Person appealed. Lost on grounds that the verbal threats were not sufficient for self defense using firearm and explains why.

This evidence constitutes at most a verbal threat to use force. These threatening words did not in themselves give rise to actual or apparent danger of imminent death or great bodily harm. There was no evidence that words were accompanied by any manifestation of a present ability to carry them out or of an intent to carry them out immediately. There was, therefore, nothing apparent to the defendant which would have reasonably led him to believe that he was in danger of imminent death or great bodily harm. As there was no evidence tending to show that the defendant was in actual or apparent danger of imminent death or great bodily harm, there was no evidence tending to show he acted in self-defense.

I still contend the answer is Yes.

There is an appellate case specifically related to self-defense using a firearm citing the reasons why/why not verbal threat does/doesn't rise to the level of justified self defense using a firearm

 

[old lady new shooter]

https://lawofselfdefense.com/law_case/state-v-dial-248-s-e-2d-366-nc-ct-app-1978/

Person appealed. Lost on grounds that the verbal threats were not sufficient for self defense using firearm and explains why.

Interesting case. I thought the larger point was that the defendant actually stated he did not intend to fire the gun, rather he produced it to scare the would-be assailant into leaving. An accidental discharge is not self-defense.

 

[Kleanbore]

Person appealed. Lost on grounds that the verbal threats were not sufficient for self defense using firearm and explains why

tNot exaclty. The appelate court tuled that because words alone were not sufficient to incicate a "radl or apparent threat" of death or imminent body harm, thus relieve in the trial court judge of the duty a duty to instruct the jury on a defense of self defense.

That is consistent with this:

What is important is the basis for a reasonable belief that there is an imminent danger of death or serious bodily harm.

The mere making of a threat is not sufficient to support such a belief, and a failure to articulate one would not render such a belief unreasonable

I still contend the answer is Yes.

That is not the answer to the question that was asked.

One more time, the question was whether there is, in case law relevant to the lawful justification of the threat or use of deadly force, "a line... drawn between "insults" and "threats" ".

I thought the larger point was that the defendant actually stated he did not intend to fire the gun,

That was one point. It also pertained to the finding that the judge's not having given the jury a self defense instruction did not constitute an error.

 

[Demi-human]

No, there is no hard line to cross in case law that makes a word a threat.
Situational context is necessary. Yes, the line can be crossed, but not with a simple utterance of a word.

“I am going to be so nice to you”(grabs wrist), can be happy, or quite chilling, depending on the set, scene and characters involved.
Words have different meanings when stuck in an elevator with a large man reeking of booze, as opposed to sitting in a restaurant ordering a lavish dessert with not a stranger.

Hearing “You are about to be murdered” while walking onto the basketball court from your friend is different than hearing it hissed from a strange voice in a dark, dead end alley while spying a large, knife wielding hand.

I feel like National Lampoon may have a skit about this in a movie somewhere...
But it’s more than just double entendres.

To be sure, I commend the man. Imagine if he weren’t there and the car stopped...

 

[JohnKSa]

It was then stated that "insults" are not actions that justify deadly force. Not that my personal opinion matters, but I agree with that and agree that that is appropriate law. But it seems to me that "I'm gonna rape your wife" is not the same kind of statement as "Hey monkey-face, go back where you came from so I don't have to look at your stupid skullcap."

What a person says can’t by itself justify deadly force. Even assuming that it is a threat and even assuming that the person saying it has the means to carry out the threat, there still needs to be:

1. The reasonable belief that an attack that would justify deadly force is imminent.
2. There is no other reasonable response to that attack than to respond with deadly force.

What a person says can help establish motive, but there are other far more critical factors that don't really have anything to do with what a person says.

I don't believe trying to understand nuances of the law is equivalent to looking for excuses to behave one way or another.

Going back to the airplane parachute anomaly, the most critical factors in determining if a parachute is necessary are: The airplane is no longer viable and can not be landed safely. Learning how to determine if an engine is functioning based on how it sounds may be an important skill, but if a parachute is needed, the determination won’t be based on just how the engine sounds. It will become obvious that there’s no other option but to use the parachute. The engine sounds may provide a clue that there's a problem, but the decision to bail out will be made on far more critical factors than that.

Similarly, trying to get into the details of when what a person says justifies deadly force is missing the point because the determination won't be based on what they say. What they say may provide some clues about where things are headed, but what will really make the difference is when it becomes obvious that there’s no other option other than to use deadly force.

Looking at the criteria that the legal system will use to decide whether or not someone acted legally or not:

1. A reasonable person would believe that the attacker means to carry out an attack.
2. A reasonable person would believe that an attack is imminent.
3. A reasonable person would believe that the attack is likely to cause serious injury or death.
4. There’s no other reasonable option but to respond with deadly force.

What the person says can be a part of the first item but that’s it.

I hate when people take individual sentences or verbiage and try to dissect it for the sole purpose of winning a discussion.

I hate when people take a discussion about critically important topics and try to reduce it to a matter of winning or losing an argument. A better way to look at it is this: If this discussion leads to a correct understanding of the topic, then everyone who reads and understands it wins.

But they do spell out requirements that must be met in order for the shooting to be deemed justified by the DA or grand jury.

What they do is create a safety net for people who are forced to commit acts which would otherwise be serious crimes. They spell out the circumstances under which a person who has assaulted another person with a deadly weapon will not be held criminally responsible for that act.

They aren’t “requirements” as in: “I’ve met all the requirements, now I can shoot him.” They are a definition of when the law says that the legal system should exonerate a person who has admitted to assaulting another citizen with a deadly weapon.

It’s important to understand what the law says, but it’s more important to understand the point of the law.

If I walk up to somebody and say “You're the dumbest bleep, bleep, bleep I’ve ever seen”, they cannot legally shoot me. But if I walk up to that same person with a baseball bat and tell them I’m going to bash their skull in…

The most important difference in these two scenarios is the fact that in one the person is carrying a weapon in their hands, not what they say. However, even the second scenario, as described, without any more information provided does not necessarily justify the use of deadly force.

Is the person holding the bat as if they mean to use it or are they leaving a baseball game and just happen to be carrying a ball, glove and a bat?

Would a reasonable person believe they are capable of using it to cause serious injury or death to the defender? (For example, if the person making the threats is small and weak while the person being threatened is large and physically capable it might be hard to make the case that the person being threatened is really in any danger. In another example, if there is some kind of physical barrier between them, then even if the attacker wants to and could harm the person if he could reach him, the fact that he can't means that there's no danger and therefore no justification.)

Would a reasonable person believe that the defender has other obvious options for dealing with the situation other than resorting to deadly force? (For example, if the defender can close his car door and drive away, it might be hard to argue that deadly force was necessary/justified.)

Let’s look at three situations:

A person comes in swinging a baseball bat but says nothing.
A person comes in swinging a baseball bat while calling the defender names.
A person comes in swinging a baseball bat while making threats against the defender.

In that case, what is said is pretty much a total non-issue in terms of whether the defender would be considered to be justified by the law--it's not what the person says but the actions taken that will determine if there's a deadly threat. The factors that are important are the ones other than the actual words used.

Let’s look at three more situations:

A person says nothing to another person.
A person calls another person names.
A person makes threats against another person.

What the person says is irrelevant. None of those situations would justify deadly force. There would need to be other circumstances, and those other circumstances, not the verbalizations would be the main factors in the legal system's decision about the situation.

What a person says (depending on the overall circumstances) can potentially be used to establish that the person had a motive, but you certainly don’t want your legal defense to hinge on what a person said to you and whether it’s a threat or an insult. There needs to be a lot more to it than just what the person says, and those other circumstance are what is really important and what will make the difference.