Pulling a gun on a unarmed assailant?

[jim in Anchorage]

At lest I think he was unarmed. Had a bizarre confrontation this morning. I step out the door at 7AM to start my truck to warm it up, as I do every day this time of year. The trucks parked in my driveway.
As I near the truck I see a person walking briskly down the street in my direction. Apparently he ses me and veers off the street right for me. While still some distance away he yells "do you live there?"
Me "Yeah"
Him "did you steal anything?"

It's pitch black out and I can't really see him yet. As he gets closer I can, and realize I have never seen this person in my life. Then he gets in my face, cocks his fist back and says. pointing at a apt. complex down the street "Why did you break into my girlfriends apt while she was asleep?
Me "I have no idea what the @&%& you're talking about."
Him " Why were you in the apt I just saw you leave?"
Me "Because I own the @$&#&!% buiding $&@$#!$.

This pleasant exchange went on for 15 more seconds, with him repeatably cocking his fist, lunging at me and saying he was going to break my face.

Tben I saw some someone walk up behind Mr hot head and stand next to him. A buddy I assume. I thought great 2 on 1. But this new fellow seemed to calm Mr hot head down immediately. in fact he did a 180 and apologized several times, shook my hand and left.

Question is, would I have to let him hit me before I pulled a gun, or is the menacing behavior enough?
Mind you this is my own property.
And no I wasn't carrying. I figured 15 seconds in my own drive was safe. Won't make that mistake again.

 

[.338-06]

Were you in fear for your life? Every state has different laws and circumstances. You need to find a source that's up to date on Alaska's laws. My info is 20.years out of date, I just realized. Thanks Jim!

 

[jim in Anchorage]

Yes I was. I have no idea what this person was capable of. When he first started yelling at me he was too far away and it was too dark for him to possibly recognize me. So it's plain to me he was targeting whomever he saw to get violent with. Given his out of control behaver and threats It is not unreasonable for me to think a knife to my chest was next.


I have been thinking about this all day. If I had been carrying [and I will be next time believe me] I would have drawn but not fired unless he actually attacked.

 

[Evergreen]

Wow, it's amazing that a person in Alaska would have to think twice about pulling a gun in self-defense when they felt there life is being threatened by a violent assailant. I never heard anywhere that you only could defend your life with a gun if the person had a deadly weapon like a gun or knife. And, how do you know he is unarmed? If a person is threatening you and you have no means of escape and is getting ready to punch you, I would think you would have justification in many of the more gun friendly states of this country. Obviously, so places in the country will incriminate you even if you are practically dead and being beaten, but I would have not thought Alaska would have been one of them. Obviously, in some states they may require you to be punched or bludgeoned before you can use an armed response. That is rather stupid, because by that time you can be unconscious or severely compromised in your armed response.

There are states with Stand Your Ground laws and they are instituted for a reason. If someone is threatening your safety and well-being, you have the right to deter the threat with an armed response. A 300lb man 25 year old drugged out man, for example, punching an older man who is 180lbs, out of shape, can inflict lethal damage. What 120lb woman with a crying baby is going to wait to get slugged by a 200lb guy before she pulls out her gun and tells the crazy piece of crap to back off or puts him down.

If the police can shoot unarmed men and get away with it, then so should law abiding armed citizen. Use Michael Brown for reference. Maybe, not the best example, as he was already slugging the cop and going for his gun before the cop managed to get the upper hand, get his gun and unload rounds in him. Obviously, police have way more leeway than an ordinary citizen, especially with legal defense, but you should be able to defend your life whether threatened with fists or any other potentially dangerous weapon.

 

[jim in Anchorage]

I didn't have think twice because as I mentioned I was unarmed. And as I mentioned in my next post if had been I would have drawn. but shot only if threats became a actual attack. I wouldn't be afraid of my day in court on this one.

 

[Zardaia]

Against an unarmed attacker there'd have to be a major, obvious disparity or force to be legally justified. I.E. 80yr old or cripple vs fit young guy, etc etc. Use of lethal force against a ruffly equal unarmed attacker would likely end you in court. Maybe you can explain your fear away there, but probably going to trial. In the eyes of the law, in general, a simple punch isn't a lethal threat.

 

[Coyote3855]

Against an unarmed attacker there'd have to be a major, obvious disparity or force to be legally justified. I.E. 80yr old or cripple vs fit young guy, etc etc. Use of lethal force against a ruffly equal unarmed attacker would likely end you in court. Maybe you can explain your fear away there, but probably going to trial. In the eyes of the law, in general, a simple punch isn't a lethal threat.

Can you back this with reference to applicable statues in Alaska or elsewhere? Or case law? Or is it just your opinion?

Jim, I probably would have reacted as you did in a similar situation, including being unarmed in my own driveway. So hindsight being 20-20, it would have been good to take some evasive action when the guy became abusive and confrontive. Probably don't want to run back to the house and have him follow you in. Also, your use of abusive language, while probably justified at the moment, did nothing to deescalate the situation.

I would have tried to be calm and low key especially since I was unarmed. Given your description of the encounter and had I been armed, I would at least have had my hand on my gun and been issuing verbal commands to stop and stay back when he started issuing threats to "break my face." And tried to put some distance between us, like circling behind my truck.

But all's well that ends well. Can't argue with success.

 

[gbran]

Many years ago, I had to confront a fella at 0200, knocking on doors and yelling. My neighbor was with me. Ultimately someone else called the cops, but I had my revolver in my hand behind my back the whole time.

I had more time to react than you did.

 

[Trunk Monkey]

Were you in fear of your life?

Wrong question the right question is; would any reasonable person in the same situation be in fear of their life?

Did you have an avenue of retreat?

Can you articulate a specific action by the assailant that caused you to believe that you were in immediate danger of losing your life or suffering grievous bodily harm?

Are you disabled?

Do you see how gray your question can get?

 

[Jeepergeo]

Letting him shake your hand could have been a fatal mistake. Unarmed, you should have attempted to put distance between the two of you, like the truck, just in case he pulled a knife or gun. You just never know with some unhinged kooks out there.

Good to hear it ended well.

 

[gun_with_a_view]

Did you have an avenue of retreat?

Retreat is not required in all states, but it remains an excellent indicator of intent and consequently the need to defend should an assailant advance in response to a retreat.

 

[Sam1911]

If you are looking for a black-letter law that says "you can shoot..." you won't find it. Every lethal force encounter is an enormous roll of the dice and pulling a gun (and especially, firing that gun) on another person means you'll have a series of other people scrutinizing every material fact of the incident and deciding FOR YOU whether the act you committed (assaulting or killing someone -- which is a crime, on its face, in every state) can be excused under the terms of your state's laws.

And one of the ways they'll attempt to decide that is by asking whether another "reasonable man" would have had a credible, articulable, "reasonable" fear that you/he would die (or be gravely injured) if he/you did not shoot. THEY will decide that, not YOU. And what you actually believed in that moment really isn't the standard they'll apply.

Here's what Alaska's law says about self defense and Stand Your Ground:

Sec. 11.81.335. Justification: Use of deadly force in defense of self.
(a) Except as provided in (b) of this section, a person who is justified in using nondeadly force in self-defense under AS 11.81.330 may use deadly force in self-defense upon another person when and to the extent the person reasonably believes the use of deadly force is necessary for self-defense against
(1) death;
(2) serious physical injury;
(3) kidnapping, except for what is described as custodial interference in the first degree in AS 11.41.320;
(4) sexual assault in the first degree;
(5) sexual assault in the second degree;
(6) sexual abuse of a minor in the first degree; or
(7) robbery in any degree.
(b) A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety as to others being defended, the person can avoid the necessity of using deadly force by leaving the area of the encounter, except there is no duty to leave the area if the person is
(1) on premises
(A) that the person owns or leases;
(B) where the person resides, temporarily or permanently; or
(C) as a guest or express or implied agent of the owner, lessor, or resident;
(2) a peace officer acting within the scope and authority of the officer's employment or a person assisting a peace officer under AS 11.81.380;
(3) in a building where the person works in the ordinary course of the person's employment;
(4) protecting a child or a member of the person's household; or
(5) in any other place where the person has a right to be.

So what we've got here is that when you say to the Court, "YES, I did this act," (declaring that you are indeed guilty of shooting someone), you then say, "And my guilt for that should be set aside because it was necessary to prevent death."

The next step is that since this is an "affirmative defense" -- not a non-guilty plea -- YOU (the defendant here) have to PROVE your claim that it was necessary for you to do what you did in order to avoid death.

The latter portions of this go on to say that you will not be required to prove that you couldn't have retreated first. You still have to prove that "the use of deadly force is necessary for self-defense against (1) death; (2) serious physical injury; etc"

Someone yelling at you doesn't support your case that shooting was NECESSARY to prevent death. Someone waving their fist, shoving you, or even punching you does not prove your case that shooting was NECESSARY to prevent your death. While we all know punches and kicks can be deadly, we also know that they usually aren't, and a jury will probably find it hard to believe that someone who threatened, essentially by his actions, to give you a black eye or bloody nose would have actually KILLED you. If there had been a visible weapon involved that would materially add to the support for the case you're trying to prove. If witnesses agreed that he'd told you, "I am going to kill you..." or words to that effect, that might be a credible support for your case. But those weren't the case, and there haven't been any other points introduced here to indicate why this threatening person was an especially deadly threat or represented some other disparity of force.

The fact that it was on your property really doesn't matter very much. It COULD go to establishing why you felt you needed to shoot but it wouldn't give you any simple, clear, justification for shooting. So the "Castle Doctrine" element seems moot.

...


All this to say, sure, shoot the guy who's cocking his fists and saying threatening things, and MAYBE the cops hear you out say "sure looks like self-defense to me..." and the District Attorney declines to file charges. Could be.

Or, the cops roll up to the scene of "an argument" where one guy shot another guy who was unarmed, take a bunch of witness statements which all say different things, the D.A. decides that your claim is suspect, and you get to spend several life savings's worth to try and convince a jury that you aren't guilty of 2nd degree murder.


A very great many people in jail for manslaughter or murder, say and earnestly believe that they were justified in shooting the other guy.

 

[Sam1911]

Wow, it's amazing that a person in Alaska would have to think twice about pulling a gun in self-defense when they felt there life is being threatened by a violent assailant.

EVERY person, everywhere, should think at least twice before threatening and/or using a gun on another person for any reason. If you don't KNOW you need to use that gun RIGHT THIS MINUTE, you really had better not. One constant recurring theme we address here is that everyone wants to ask "WHEN CAN I SHOOT?" And that's entirely the wrong question. It should be "MUST I shoot?" If you had no choice, then the law is set up to give you a fair chance to prove that to the minds of those who will be deciding your fate after the fact.

If you had a choice and decided you could shoot, then you probably shouldn't have.

Jim's situation here proves that point. SHOULD he have shot that man? Nope. He's alive here right now, and not even slightly harmed. Shooting that man would have been a life-changing intensely negative experience that he may have regretted for the duration of his, probably incarcerated, life.

Not shooting was the right choice. Bravo, sir!

I never heard anywhere that you only could defend your life with a gun if the person had a deadly weapon like a gun or knife.

There's no place where you CAN defend your life with a gun without a credible and articulable REASONABLE fear that you're about to die -- right this instant -- if you do not. And you'll have to prove why that was so. It is not required that the other guy also has a deadly weapon, but it sure does help immensely with proving your case. Him NOT having a weapon goes a long way for the State in casting doubt on how credible a lethal thread he really was.

And, how do you know he is unarmed?

You can't claim your life was threatened because you knew there was a possibility that he might be armed.

If a person is threatening you and you have no means of escape and is getting ready to punch you, I would think you would have justification in many of the more gun friendly states of this country.

Well, now you just introduced a new angle -- that of a means of escape -- and Alaska doesn't require that.
But if you're counting on "gun friendly" places to be lenient about justifications for homicide, you are GRAVELY mistaken. Gun rights is one area of law. Homicide and justifications for it are another. And you will have to prove your self-defense case in if you kill someone in any jurisdiction.

...they may require you to be punched or bludgeoned before you can use an armed response. That is rather stupid, because by that time you can be unconscious or severely compromised in your armed response.

There absolutely is a very fine line between "no justification for pulling a gun" and "compromised and unable to fight back." Remember, lethal encounters are HORRIBLE things. They go VERY BADLY for people. You can do everything "right" and end up dead, or end up in jail because the D.A. and jury just don't agree that your actions met the terms of the law. Sure it is "stupid" that you might get beaten up and disabled before you are able to lawfully respond. That's a risk. Draw and/or fire at someone without clear and believably reasonable threat of immediate death, and you will likely be in jail for a long time. That's another risk we face. Assuming you're ever "safe" be cause of what state you're in or who's property you're on is utter foolishness.

If you do not HAVE TO SHOOT, right this instant -- DON'T.

There are states with Stand Your Ground laws and they are instituted for a reason.

Do you understand "Stand Your Ground?" All it says is that you don't have to prove that you couldn't retreat before you fired. It gives you NO FURTHER PROTECTIONS and offers no justification at all for why you shot someone.

If someone is threatening your safety and well-being, you have the right to deter the threat with an armed response.

Maybe. If the threat is credible and immediate. And that by "safety and well-being" you mean LIFE. If you mean "scuffle" or "shoving match" or "punch in the nose" ... well, good luck with that.

A 300lb man 25 year old drugged out man, for example, punching an older man who is 180lbs, out of shape, can inflict lethal damage. What 120lb woman with a crying baby is going to wait to get slugged by a 200lb guy before she pulls out her gun and tells the crazy piece of crap to back off or puts him down.

Ok, now this is real. We're now discussing "disparity of force" and such are VERY SERIOUS additional factors which can count for (or against, I guess) your self-defense claim.

If the police can shoot unarmed men and get away with it, then so should law abiding armed citizen. Use Michael Brown for reference.

Oh good heavens. I hope you just forgot your laughing smiley emoticon there. Because that would be an astonishingly bad way to support a self-defense case you're trying to establish.

 

[Kleanbore]

Posted by Evergreen:

Wow, it's amazing that a person in Alaska would have to think twice about pulling a gun in self-defense when they felt there life is being threatened by a violent assailant.

How one "felt" is just one little consideration.

It is a matter of what one knew at the time and what a reasonable person would have done under the same circumstances.

In most states, one may not lawfully present a firearm unless there is a basis for believing that the use of deadly force would be lawfully justified.

In a handful of states, a reasonable belief that non-deadly physical force would be required may suffice.

I never heard anywhere that you only could defend your life with a gun if the person had a deadly weapon like a gun or knife.

Having a gun or knife would enter into the picture, but there are other factors that would have to be taken into account.

And, how do you know he is unarmed? If a person is threatening you and you have no means of escape and is getting ready to punch you, I would think you would have justification in many of the more gun friendly states of this country.

First, no, the mere threat of a punch is most unlikely to justify pulling gun unless there is a significant disparity of force and there are indications that the person would be expected to cause great bodily harm rather than simply giving someone what is colloquially referred to as an "educational beat down".

Second, do not confuse "gun friendliness" with aspects of the use of force laws. You will find that California and New York, to name two examples, have reasonable laws regarding self defense.

Obviously, in some states they may require you to be punched or bludgeoned before you can use an armed response.

I know of no such states.

There are states with Stand Your Ground laws and they are instituted for a reason.

Yes. The reason is to eliminate the requirement for a defendant to present evidence to the effect that there had been no safe means of escape.

And that's it.

If someone is threatening your safety and well-being, you have the right to deter the threat with an armed response.

That depends entirely upon the nature and severity of the threat. "Safety and well being"? Probably not. An armed response for defending against an imminent threat of death or serious injury may be excused if there was reason to believe that it had been immediately necessary. Think "last resort".

A 300lb man 25 year old drugged out man, for example, punching an older man who is 180lbs, out of shape, can inflict lethal damage. What 120lb woman with a crying baby is going to wait to get slugged by a 200lb guy before she pulls out her gun and tells the crazy piece of crap to back off or puts him down.

Those examples illustrate the disparity of force issue.

Keep in mind that that can be a difficult defense to successfully mount.

If the police can shoot unarmed men and get away with it, then so should law abiding armed citizen. Use Michael Brown for reference. Maybe, not the best example, as he was already slugging the cop and going for his gun before the cop managed to get the upper hand, get his gun and unload rounds in him.

No, that is not a good example.

...you should be able to defend your life whether threatened with fists or any other potentially dangerous weapon.

The law will likely not see that "defending your life" when "threatened with fists" makes any sense at all.

And it looks as if Sam has underscored most of the above...

 

[denton]

Here in Utah, a homeowner has a bit more legal protection in his home or in his yard.

But, otherwise, what Sam1911 said.

You are sometimes in a position of having to choose between crappy alternatives. If someone comes after you, yelling and cursing, and swinging his fists, you'll probably survive and endure less torment than you would dealing with the legal system if you shot him.

We had a case here not long ago, where a guy was unarmed, seriously drunk, and banging furiously on a homeowner's door (wrong house, apparently). He then went around to the back and banged on the sliding glass patio door hard enough to break it in. When he entered the house, the homeowner shot him. No charges filed. FWIW, I would not have fired because I would not feel my life to be in danger, and it's easier to fix a patio door than deal with the legal system.

 

[Bobson]

Nobody has addressed this yet, that I've seen; and it's a very important point to make:

Drawing a gun in anticipation of needing to use it is not (in any state, to my knowledge) the use of deadly force.

Of course we all agree shooting would have been a life-changing mistake, but drawing a gun wouldn't necessarily have been imprudent. At the end of the day, you can worry about the law or you can worry about your safety, or you can try your best to worry about both.

In this situation, a man on his own property was confronted, in the dark, by an unknown, unseen, aggressive stranger. There's no way to know if this stranger was armed, and waiting until he's within arms reach of you to find out and respond appropriately may very well be too late.

Our homeowner, in his case, was (1) Caught off guard, (2) Confused about what was happening, and (3) Couldn't see the person confronting him.

Shoot. You were in the perfect situation to be the perfect crime victim.

 

[Kleanbore]

Posted by Coyote3855:

Originally Posted by Zardaia
Against an unarmed attacker there'd have to be a major, obvious disparity or force to be legally justified. I.E. 80yr old or cripple vs fit young guy, etc etc. Use of lethal force against a ruffly equal unarmed attacker would likely end you in court. Maybe you can explain your fear away there, but probably going to trial. In the eyes of the law, in general, a simple punch isn't a lethal threat.

Can you back this with reference to applicable statues in Alaska or elsewhere? Or case law? Or is it just your opinion?

That derives directly from the fundamental principle that to justify the use of deadly force, one must be threatened by someone with the ability and opportunity to cause death or serious bodily harm, in addition to a couple of other key considerations.

It is the case everywhere in the country.

What kind of disparity of force would justify the use of deadly force is not really a matter to law--it would be up to a jury.

Insrtuctors who understand the principles tell us that what jurors could consider include

• The defender being outnumbered
• An unfit defender against a fit attacker
• A significant size difference
• A female being attacked by a male
• A person being attacked by someone known to the defender to be a trained fighter.

But here are no guarantees.

There was a famous case in which a man was attacked by some unarmed women. It happened in a "stand your ground" state, but he attempted to retreat and could not. He was being beaten senseless before he finally drew and fired. No one died.

He saw charged, he spent a long time in jail, and he underwent two lengthy and grueling and costly trials. After tow hung juries the prosecution gave up.

 

[jim in Anchorage]

Thanks to everyone who contributed to this thread. You've given me lot to think about.
One thing I can say about this incident though. I will never scoff again at people that say they always carry when ever they can.
I leaned that threats can pop up at times and places you would never expect.

 

[Kleanbore]

Posted by Bobson:

Nobody has addressed this yet, that I've seen; and it's a very important point to make:

Drawing a gun in anticipation of needing to use it is not (in any state, to my knowledge) the use of deadly force.

That's true in many, if not most, states. But it is not really relevant to the justification issue.

What is important is whether the use of deadly force would have been justified, or in some states (Washington induced), whether the use of non-deadly physical force would have been justified.

Of course we all agree shooting would have been a life-changing mistake, but drawing a gun wouldn't necessarily have been imprudent.

It might have been imprudent, in more than one way. It might well have led to serious criminal charges, and it might have led to the actor being shot by either the other individual or by someone else--perhaps a police officer responding to a call.

In this situation, a man on his own property was confronted, in the dark, by an unknown, unseen, aggressive stranger.

"On his own property" would have little, if any, bearing on justification.

There's one exception that I know of--in Missouri, the castle doctrine now extends to property is actually owned or leased by the defender.

That does not mean that drawing would be a good idea.

There's no way to know if this stranger was armed, and waiting until he's within arms reach of you to find out and respond appropriately may very well be too late.

How would one ever know whether someone is unarmed? One cannot draw a gun simply because there is a possibility.

Our homeowner, in his case, was (1) Caught off guard, (2) Confused about what was happening, and (3) Couldn't see the person confronting him.

That's a terrible time to use deadly force, or to threaten it.

But he could see.

I see a person walking briskly down the street in my direction. Apparently he ses me and veers off the street right for me. ....

It's pitch black out and I can't really see him yet. As he gets closer I can, and realize I have never seen this person in my life. Then he gets in my face, cocks his fist back and says. pointing ...

The man's aggressive behavior would have been very worrisome indeed:

This pleasant exchange went on for 15 more seconds, with him repeatably cocking his fist, lunging at me and saying he was going break my face.

But had anything untoward transpired, the accounts of what had happened would certainly diverge markedly.

Shoot. You were in the perfect situation to be the perfect crime victim.

I hope that you do not really mean "shoot".

 

[Kleanbore]

Posted by jim in Anchorage:

One thing I can say about this incident though. I will never scoff again at people that say they always carry when ever they can.
I leaned that threats can pop up at times and places you would never expect.

I hear you.

 

[AKElroy]

Against an unarmed attacker there'd have to be a major, obvious disparity or force to be legally justified. I.E. 80yr old or cripple vs fit young guy, etc etc. Use of lethal force against a ruffly equal unarmed attacker would likely end you in court. Maybe you can explain your fear away there, but probably going to trial. In the eyes of the law, in general, a simple punch isn't a lethal threat.

I have a number of LEO friends, and we had a publicized shooting several years back with a cop shooting an unarmed teen. He was not charged. An FBI agent I used to work out with explained that the law here does not require one to engage in a fight. Losing could be fatal if the weapon is taken.

 

[Kleanbore]

An FBI agent I used to work out with explained that the law here does not require one to engage in a fight.

That's true everywhere.

Losing could be fatal if the weapon is taken.

So is that.

Neither point addresses the disparity of force issue.

 

[Bobson]

You hope I do not mean shoot? Maybe a poor choice of wording on my part, as "shoot" was meant as an exclamation, similar to "dang," "darn," or "here's the bottom line." Anyway, you can read my post and KNOW I do not mean to enforce shooting, and not waste your time trying to read between the lines to find something that isn't there, given that I clearly and distinctly said it would have been a "life-changing mistake."

Furthermore, you're wrong in saying this is a question about the use of deadly force. It has nothing to do with deadly force justification, regardless of the fact that the majority of posters want to focus on the irrelevant. The author of the OP clearly said (1) he wasn't armed, and (2) wouldn't have shot even if he was.

The OP is about drawing a firearm - about using the threat of deadly force on a potentially unarmed attacker, which can be justified in many states, if not all. The use of deadly force and the threat of the use of deadly force are two distinctly different things, with different legal justifications.

You were in the perfect situation to be the perfect crime victim.

The point of this line was intended to highlight the fact that if the stranger had been carrying a knife or other weapon and had any intention to use it, our OP could easily be lying in a casket today, instead of asking people when he's legally allowed to start defending himself with a SHOW of force. Ridiculous.

 

[AKElroy]

That's true everywhere.

So is that.

Neither point addresses the disparity of force issue.

The gent I referenced pointed to another workout buddy, a pharmacy salesman that is one of the largest people I know. He was pushing out 300lb bench presses one after another. His point was that against a superior opponent, deadly force would likely be justified, so I agree with your point.

On a related note, does this argument likewise mean that female officers may be justified more frequently than stronger male counterparts in the use of deadly force? Interesting twist to that debate, that more female officers may in fact mean more use of deadly force.

 

[Bobson]

....