Pulling a gun on a unarmed assailant?

[Sam1911]

Bobson, for what it's worth I read your closing there exactly the same way, as in a directive: "SHOOT (verb, imperative), you were in the perfect position to be a crime victim."

I see what you meant now.

A question of using a deliberate display of the weapon (which is itself legally defined as non-lethal force in most places) to change the guy's actions toward you is worth while to discuss, certainly. In some ways it's almost harder to clearly answer than the question of actually shooting.

It may be a great way of completely de-escalating a situation like that. Or, it may have ended up with the OP arrested for unlawfully threatening someone if he could not successfully defend his case for a need to use force. Or, it may have pushed what turned out to be a completely non-violent encounter into a deadly one for either or both parties.

We have a lot of hot discussions about displays of force here. Some folks are strongly of the opinion that the gun should never, ever come into view until the defender MUST fire. Others like the idea of, essentially, giving the bad guy ONE more chance to change his mind.

Now, the brief window of time when it is justifiable to display a weapon in a threatening way and the moment when one MUST shoot is usually both extremely short and hard to define.

 

[Kleanbore]

Posted by 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."

Good--you confused me.

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.

I think you have misunderstood my point.

The author of the OP clearly said (1) he wasn't armed, and (2) wouldn't have shot even if he was.

Yep.

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.

Yes, it can be justified, in all of them.

But the threshold for justifying the threat of deadly force varies.

In the majority of jurisdictions, the threat of deadly force is not justified unless the use of deadly force would be justified. The fact that the threat of deadly force does not constitute the use of deadly force is irrelevant.

In some states, a firearm may be presented with lesser justification, but the use of non-deadly physical force would still have to be justified. I do not have a photographic memory, but Arizona, Texas, and Washington State come to mind immediately. There may be others.

The use of deadly force and the threat of the use of deadly force are two distinctly different things,...

Yep.

...with different legal justifications.

Not everywhere.

Here's the way Florida law governs the threat of force:

...those who threaten to use force may claim self-defense if the threat was made in a manner and under circumstances that would have been justifiable under chapter 776, Florida Statutes, had force actually been used.

In Florida, pointing a gun does not constitute the use of deadly force. But deadly force must be justifiable before diisplaying the gun is lawful.

That's true in most jurisdictions.

See this: http://www.thehighroad.org/showthread.php?t=731200

 

[Evergreen]

E
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.

I apologize for posting that. Actually, I realize Michael Brown was horrible example and got screwed up in the point I was making. My point is there has been cases of high profile police shooting of unarmed people and they walked. But, I agree what a cop can get away with, a civilian with have a considerable mountain to climb and no where the amount of justification in the eyes of a jury.


ANyway, I was sharing more of my sentiments about what I feel is right. I also was more referring to pulling a gun to tell a potentially dangerous individual to leave rather than to just shoot somebody making threats.


However, I am well aware that even a totally 100% legitimate shoot where the guy is charging your with a knife or whatever can still result in huge legal headaches and the potential for you to be incriminated. I've heard of people being ruined financially, at least, in civil court for legitimately shooting and killing an attacker.

I carry a can of pretty powerful pepper spray in a holster to deal with drunk and belligerent a-holes. And, believe me, I have encountered a lot of them. Although, I am 200lbs and in fairly good shape, so I feel I could take a punch or two if needed and have in the past. Also, when I deal with psychos , I generally try to be calm and friendly and just diffuse their aggression. I am mostly worried about some old guy or small woman (especially with child) having to encounter some 250lb drugged out muscle bound scumbag. Sadly, the pepper spray I carry is illegal in a few of the states, but in my opinion, it is my first line of defense against an unarmed attacker or someone I feel poses danger to my life. I feel those tiny little mouth spray sized pepper sprays shouldn't be relied on, especially if the person threatening you is a 300lb drugged out maniac. The spray I have is just as concentrated as bear spray (but is made for humans, so doesn't unload as much as fast), has a 15ft range and sprays a powerful stream.

I know with our current legal system and defense laws that the minute you pull a gun on someone you can be in a world of dung. If you shoot someone without a gun I know you are going to go through hell and back to get out of it. It just makes me pissed off that laws seem to accommodate criminals and give them the benefits over the victims.

I'm puzzled about how stupid our legal system can be. For example, in Washington and many other states, if someone is breaking into your car, you are not allowed to confront them with a gun and tell them to leave. All you are allowed to do is call the police and sit and watch as they take your stuff. If you attempt to stop them from stealing your stuff with physical force, even as much as wrestling with them, you can be arrested and be found guilty of assault. The problem is that car theft/break-in is a Misdemeanor in Washington and you cannot use force to stop someone committing a non-violent Misdemeanor crime.

Anyway, I think people should carry pepper spray (non lethal weapon) and a gun with them everywhere they go. Now, maybe Jim understands the issues I had with considering living in South Carolina, with these Must Inform Laws, which we were arguing over in the previous thread. I prefer to be armed all the time and avoid "Gun Free Zones". If I don't have time to carry my full size M&P 9mm with me, I have my little LCR w/CTG in my pocket.


By the way, I was almost beaten to death and choked to death by a scumbag when I was 19. This was many years ago. So, I do know that if I had a gun, I would have probably used it when the guy got my neck and started suffocating me. He may have been unarmed, but I was certain I would die. Of course, even in this case, good luck convincing the jury. Thankfully, in my older age I don't put myself in stupid and dangerous situations like I did then. However, even an honorable , law-abiding person can be in the wrong place at the wrong time, as Jim was.

I also was told by one of firearm instructors during my Oregon CHL class that if you are punched above the neck (basically, your head) or choked it is considered justified, at least in state of Oregon, for the use of deadly force. I'm not sure if he is 100% accurate, but he was the guy teaching the Oregon weapon law course I took about 6 or 7 years ago.

 

[Sam1911]

My point is there has been cases of high profile police shooting of unarmed people and they walked.

But "they walked" can mean a lot of different things. The individual officer didn't go to PRISON? Yeah, sometimes. That often is after months or years in the legal system fighting hard to win that decision, and that's with his department and/or city footing the bill for the hundreds of thousands of dollars in legal fees it took to win that case. And he or she may still be employable as a cop. Maybe not. Maybe doesn't even have the stomach for it any more, and lives with a name and reputation that will make them a marked man/woman for decades. It isn't a positive thing, even for cops.

 

[Evergreen]

But "they walked" can mean a lot of different things. The individual officer didn't go to PRISON? Yeah, sometimes. That often is after months or years in the legal system fighting hard to win that decision, and that's with his department and/or city footing the bill for the hundreds of thousands of dollars in legal fees it took to win that case. And he or she may still be employable as a cop. Maybe not. Maybe doesn't even have the stomach for it any more, and lives with a name and reputation that will make them a marked man/woman for decades. It isn't a positive thing, even for cops.

Agreed

 

[Kleanbore]

Posted by Evergreen:

I know with our current legal system and defense laws that the minute you pull a gun on someone you can be in a world of dung.

It's not just the legal system you have to worry about.

When you draw your gun, you have shown that you have the ability and the opportunity to cause someone death or serious bodily harm. And you most certainly have put someone in jeopardy.

Think about that. What it means is that unless the other person has actually been involved in the commission of a violent crime, or unless he had instigated a confrontation, you have provided to that person the legal justification to employ deadly force against you in self defense.

Keep in mind that he probably thinks that his halo is as shiny as the one you believe to be above your head.

 

[Sam1911]

By the way, I was almost beaten to death and choked to death by a scumbag when I was 19. This was many years ago. So, I do know that if I had a gun, I would have probably used it when the guy got my neck and started suffocating me. He may have been unarmed, but I was certain I would die. Of course, even in this case, good luck convincing the jury.

And that is the sort of explanation that would indeed go a long way to convincing investigators, D.A.s, and if necessary, jurors that your actions were perfectly reasonable. The fact that the guy did or didn't have a weapon isn't the primary factor, the fact that he was seriously able, and trying, to kill you is.

I also was told my one of firearm instructors during my Oregon CHL course that if you are punched above the neck or choked it is considered justified, at least in state of Oregon, for the use of deadly force. I'm not sure if he is 100% accurate, but he was the guy teaching the Oregon weapon law course I took about 6 or 7 years ago.

While I don't know this for dead certain, I don't believe that any state is going to put a specific attack (punch to the neck, or choking) into the law and say that that specific action automatically constitutes a justification for deadly force.

What your instructor might have been saying is that he knows of cases where a very seriously harmful action LIKE THAT was successfully introduced as part of a justification in a self-defense case. As in, a punch to the arm or chest might not really persuade a jury to decide you shot as a reasonable man would have -- but a punch to the throat more probably would.

Or grabbing you around the waist and squeezing would not be a significant enough threat, but grabbing you around the neck and squeezing is much more harmful and a lethal force action is a reasonable response.

So, that bit of instruction might have been intended to show how the answers aren't simple and the little details specific to your own case will make great differences in how it goes for you.

 

[gripper]

Anyone threatening me in a way a reasonable person would recognize as a threat,while cutting off my ability to safely retreat/withdraw AND was " cocking his fist" -DEMONSTRATING their intentions ( physical assault, striking etc) would ( and HAVE BEEN) responded to with the Minimum Necessary Force to Stop The Threat/Simple Assault/Actual Assault and Prevent Injury/Death/Harm to Myself or Others.
That's my story and I'm sticking with it. Play Stupid Games,Win Stupid Prizes.

 

[Black Knight]

Maybe I missed it quickly scanning the responses but I hope you notified the police of the incident. While there was nothing they could do at the moment they should have at least taken a report. This would lead to a paper trail in your favor should such a situation occur in the future. It would show that you have done what you can to keep from using a weapon. Based on his actions I would guess that the local police has had contact with him or has other reports about him. BTW you handled it fine, no one was hurt and you have a chance to question your performance. Also contact your attorney for legal advice on this situation.

 

[jim in Anchorage]

Maybe I missed it quickly scanning the responses but I hope you notified the police of the incident. While there was nothing they could do at the moment they should have at least taken a report. This would lead to a paper trail in your favor should such a situation occur in the future. It would show that you have done what you can to keep from using a weapon. Based on his actions I would guess that the local police has had contact with him or has other reports about him. BTW you handled it fine, no one was hurt and you have a chance to question your performance. Also contact your attorney for legal advice on this situation.

No I didn't contact the police. But reading the rest of your post gave me a thought on how his buddy was able to calm him down so quickly. He may have reminded him he was on parole/probation.

 

[Jim K]

You don't have to be afraid of being killed to use deadly force; every law I know of uses a phrase something like "death or grievous bodily injury." As a lawyer friend says, "You don't have to let yourself be beaten into a bloody pulp" to avoid being charged with use of excessive force. Even if you and the assailant are physically matched, he is the aggressor; you are not required to engage in some kind of "fair fight" with him. You are not a professional fighter in a boxing match, you are defending yourself against a person who is trying to inflict serious harm, maybe even death, on you. He doesn't need a gun or a knife to do that.

Yes, leave if you can so so safely. Go inside, or get in the vehicle and call police. But the fact that he has no weapon showing doesn't mean he is not dangerous to you; you can act accordingly.

Jim

 

[Bobson]

Kleanbore and Sam, thanks for clearing that stuff up for me.

 

[typhun]

i'm surprised you let him close enough to you to shake your hand. Hopefully you had your hands up in front of you in a defensive position saying back off and were ready to go on the offensive with a palm heel/eye rip to the face or chop to the throat the second he started to throw that punch. Another point is to always take a quick scan around you and step off the "X" just in case someone is coming up behind you. I carry a kubatan/OC spray (ASP Key Defender OC Pepper Spray) with me in addition to my firearm. If I feel something isnt right i get that in my hand and ready. It's unobtrusive and you can even put your keys on it, which gets it in your hand as you walk out of a store to your car, most folks never even notice it and dont think its anything but a keychain or a flashlight. I have this in a carrier on my belt which holds my kubaton and my spare 9mm compact magazine (Woods Tool Case Kit Diy Design Your Own Leathercraft Tandy Leather 4180-00)
Sometimes have other options before going straight to a firearm.

 

[Kleanbore]

Posted by Jim K:

You don't have to be afraid of being killed to use deadly force; every law I know of uses a phrase something like "death or grievous bodily injury."

True fact. Such injury could include the loss of an eye, crippling injury, serious disfigurement, sexual assault....

As a lawyer friend says, "You don't have to let yourself be beaten into a bloody pulp" to avoid being charged with use of excessive force.

He's right.

Even if you and the assailant are physically matched, he is the aggressor; you are not required to engage in some kind of "fair fight" with him.

True.

You are not a professional fighter in a boxing match, you are defending yourself against a person who is trying to inflict serious harm, maybe even death, on you.

True.

He doesn't need a gun or a knife to do that.

True, but read on.

Yes, leave if you can so so safely. Go inside, or get in the vehicle and call police.

Excellent advice.

But the fact that he has no weapon showing doesn't mean he is not dangerous to you; you can act accordingly.

"Acting accordingly" would extend to the use of deadly force if an only if you had a reasonable belief that he had the ability to cause death or serious injury, That would entail either a basis for believing that he did have weapon, or a significant disparity of force. Otherwise, the fact that a single punch can be very injurious won't cut it.

 

[dringge]

I am reading this with great interest. I have not had to draw my weapon so I dont know how I might react. I would definately be more inclined to flight rather than fight unless at my own home or with family. I am getting that laws vary a lot, interpretations of those laws vary, and situations vary. I try to put myself in the situation and decide what I might do if confronted. Hopefully it will make me make a wise decision. I am glad the OP's situation worked out well.

 

[joem1945]

I'm old and somewhat crippled. I will not be beat on or hurt in any way. Take too long to heal up. I have and will continue to carry and deploy my firearm if any threat come my way.

 

[Kleanbore]

Posted by joem1945:

I'm old and somewhat crippled. I will not be beat on or hurt in any way. Take too long to heal up. I have and will continue to carry and deploy my firearm if any threat come my way.

Your age and infirmity could help support your defense because of the way they would impact your ability to defend yourself--the disparity of force defense.

They may also increase the likelihood that an attack would result in a more serious injury.

...and impinge on whether you could retreat with perfect safety.

You do not want to test any of those thoughts in the legal system if you can possibly avoid doing so.

Nor do you want to do anything that could give someone the justification for employing deadly force against you.

Or do anything that could lead someone else to do that.

If you "deploy" your firearm, you could do just that.

I don't think that your thoughts about "healing" time would weigh very heavily in your favor in a defense of justification.

Be careful about that "any threat" that might "come your way"--has to be a serious, imminent threat involving ability, opportunity,and jeopardy. And you had better not have any other choice.

Consider carrying a less lethal weapon.

And if you need a walking stick, learn how to use it.

I like these.

 

[jim in Anchorage]

I am reading this with great interest. I have not had to draw my weapon so I dont know how I might react. I would definately be more inclined to flight rather than fight unless at my own home or with family. I am getting that laws vary a lot, interpretations of those laws vary, and situations vary. I try to put myself in the situation and decide what I might do if confronted. Hopefully it will make me make a wise decision. I am glad the OP's situation worked out well.

As unpleasant as the incident was for me I feel positive about the experience. Nothing like a real life encounter to make you think long and hard about the next one. I just never thought it would happen to me so never really thought about how to handle certain situations.

 

[jim in Anchorage]

Posted by joem1945

And if you need a walking stick, learn how to use it.

I like these.

Well that was disappointing. I thought it would be a cane gun

 

[Drail]

I will never "draw a gun" on anyone that I have not already decided to shoot just as fast as I can clear the holster. I'm not sure what the OP meant by "draw a gun". Did he mean an attempt to intimidate by pointing a gun? It is not possible to determine if someone has a weapon by simply looking at them but if someone threatens you (or your loved ones) and you are in fear of your life it really doesn't matter if you "think" they are armed or not. You must stop that threat. And as someone who has needed to use a cane for many years I can assure you that a cane is a deadly weapon in trained hands.

 

[Blackbeard]

I'm not a lawyer but I believe you need to have a reasonable fear for your life or grave bodily harm to escalate to deadly force. If it's one unarmed guy punching you in the face, that may not be enough for a jury. If he's got you on the sidewalk pinned down and smashing your head into concrete (ala Trayvon Martin) then that is deadly force. But two men standing and one punches the other, probably not.

Now if it were two on one, or the assailant is much larger or you're too frail to fight, that's a disparity of force which could justify pulling a gun.

To repeat, I'm not a lawyer. I just play one on the internet.

 

[AKElroy]

I will never "draw a gun" on anyone that I have not already decided to shoot just as fast as I can clear the holster. I'm not sure what the OP meant by "draw a gun". Did he mean an attempt to intimidate by pointing a gun? It is not possible to determine if someone has a weapon by simply looking at them but if someone threatens you (or your loved ones) and you are in fear of your life it really doesn't matter if you "think" they are armed or not. You must stop that threat. And as someone who has needed to use a cane for many years I can assure you that a cane is a deadly weapon in trained hands.

I've been in a situation where this was not so easy to do in practice. I stopped at a remote overlook to let my wife feed & change the baby. They were in the backseat, engine running to keep the A/C blasting on a 100+ day. I walked down to the river, where I noticed a gang-banger thug making tracks to my car. I was a little closer, so I got there before he did. I grabbed my 1911 from under the seat, spun around to see him standing in front of me. He threw up his hands, said he didn't want any trouble, and took off.

Yes, I profiled him. Yes, he MAY have not been intending to jack my car with my wife and baby in the backseat. All I know is that he didn't, and I'm good with erring on the side of caution. My only mistake was in not calling the police; if he had been acting innocently, I might have been the one face down in a felony stop.

 

[Sav .250]

What ever actions you take ................is on you. My opinion means nothing.

 

[yugorpk]

In 30 years of carrying a firearm Ive pulled my gun twice in situations where I was certain that certain that I was in the right to pull my gun in legitimate self defense. One was someone coming at me with a baseball bat in my own front yard after breaking up an altercation with my ex wife and his wife. The other was two muggers coming at me in a hotel parking lot . One of them had a knife. In both cases I pointed the gun at the assailants and they went running off and damn quick at that. I didnt see any need to shoot them once they were running away. I am not a police officer and what they do after they ran away from me I could care less. Yes, both times the assailants were armed with something that could have done me bodily harm and in neither case did I actually shoot anyone. I suppose an "overzealous" prosecutor could have charged me with brandishing or something like that but in both cases no one died that day.

 

[denton]

The discussion here points out that laws vary from place to place, and there is no bright line that separates self-defense actions that are OK and those that can land you in serious legal trouble.

My wife is regularly accompanied by Mssrs Sig and Sauer. But both of us also carry Sabre 3 in 1 pepper spray and a very bright flashlight with a strobe mode.

Those who claim to know tell me that the spray will seriously distract an assailant for half an hour or more.

The bright strobe light is intimidating, and probably somewhat conceals what you are doing behind the light.

I think its wise to carry a firearm. I also think it is wise to have alternate means of self defense that are not deadly.