Discussion in 'Legal' started by Owen Sparks, Feb 8, 2009.
And hoe do you know hes unarmed? Because he told you?
viparstarstruck: "And hoe do you know hes unarmed? Because he told you?"
Here, until he uses deadly force or threatens it in a way that a reasonable person would interpret so as to fear imminent death or serious bodily injury, i.e., pulls a knife or draws a gun, he has not done so and deadly force generally is unwarranted. He shows, he goes. Until then, put up your dukes and/or throw him out. Or get lost. I am quite comfortable with that rule. I wouldn't want to get shot justifiably or otherwise just because some shrinking violet found me intimidating, particularly considering as how I'm not.
But by the time an assailant draws a gun, you've already lost [your life].
Me too. I carry handloads in my guns.
if it is in your home, i wouldnt worry to much about it. but out on the street, is a whole different ball game. basicly just figure it like this. is your LIFE in danger? is there another way out of this? can you get help? shooting someone is a last ditch escape reserved for when all else fails. not a first line defense. if you use it as a first like of defense, you will certainly be arrested charged, and tried for at least manslaughter. if, your life is truely in danger, then of course, you have the right to defend your self. but you can be sure that if the police dont see it your way, you will be charged.
They covered this in the VA CCW class I just took. If you are not in your home you can use deadly force only when protecting yourself or others from life threatening harm.
He specifically said in Virginia you can not use deadly force to save yourself from an ass beating. You can't even brandish to save yourself from an ass beating. Of course, if you are a women just scream rape. If he continues to attack no jury in VA will convict her.
Before you shoot, LOUDLY yell that he needs to BACK AWAY before you SHOOT. (Hold the gun as well.)
And I believe that's what Ayoob asserts, not that an arrest is guaranteed. It's foolish to deny the possibility, AT LEAST as foolish as denying the possibility of needing to defend oneself in the first place.
Point of information: No such thing as an objective opinion.
The problem with shooting a unarmed person is that you have to prove that your life was actually in danger of death or great bodily harm if taken to court. Its going to be tough to prove that without disparity of force factors on your side.
When you pull the trigger your decision to pull the trigger has to be made on the FACTS leading up to pulling the trigger. If you show up to court and say you pulled the trigger because you thought he had a gun, you will be hung. Just because you thought he might have a gun, doesn't mean he did or he didn't. Even if he had a gun its unlikely under any circumstances that the gun will be able to be brought into evidence. Unless you saw it.
If thats the case why carry a gun? You haven't lost your life until your heart stops beating (and even then you might be brought back). What would you do if someone draws a gun, say "aww crap, I guess I am dead, let me not try to do anything to save myself".
Having that mentality could be a problem. I suggest you study disparity of force so you can understand how your physical disabilities do put you at a disadvantage, but they don't give you the right to just use deadly force in situations where your life is not at a real danger of death or great bodily harm.
One thing I think you should look at is threat factors if you have time to think. These listed factors may justify an escalation of force and aid in your defense later.
Your vs Threats Combat Skill level
Your vs Threats Size and Strength
Your age vs Theats age
Your gender vs Theats gender
Threats mental state
Inability to disengage
Close proximity to a weapon
Injury, exhuastion, or disability
Its important to be verbal and repeat simple commands. "Back away! Get on the ground! Leave me alone! Get away from my gun!"
If witness hear those then it aids to your defense.
If you use lethal force, holster your weapon before the police arrive. The cops will take notes which will be used in court. Be sure to say something along the lines of "I was in fear for my life, I want him arrested" regardless if the threat is doing a carpet snow angle on your floor and leaking.
If the threat was unarmed, and you shoot him, the court might try to make a issue of the disparity of force. But then again, that might be able to help you, because after all, you made your commands verbal and you where brandishing a weapon. If the threat was too stupid to see that the odds where against him, oh well, his loss. He had other options but made his choice to carry out the attack.
The above advice is good. However this
can't be determined by anyone. I say that because you can state the facts such as "they were talking to them selves", or "they were talking without making any sense" etc. However you really wont know what mental issues they might have. It might be alcohol, it might be a brain problem, it could be that they broke up with their girlfriend of boy friend. Their mental state doesn't matter, the facts of how they were acting are what matter.
"you have to prove that your life was actually in danger of death or great bodily harm if taken to court" - GregGry
In the Oregon, the burden of proof lies with the prosecution.
Explain that. If the prosecution has to prove that your life wasn't in danger, thats no different then in any case of self defense that makes it to court. You are innocent until proven guilty, but if you don't maintain your innocence you will be found guilty.
That is absolutely not true. When I was 10, I was attacked by a 12 year old, and yes, I was kicked there. I didn't even feel it. Same thing happened when I fell and had a huge cut on my head.
No, he's an even match, and if he's not using deadly force, fight back using non-lethal force.
Don't let him. If he starts to get a weapon, then I'd shoot him.
I think some exception to this would be in your house. Unlike outside, I have no idea how many people there are, and if they are in my house, they probably have a plan for if they find me. (If they break in at night, they know I'm there, so I assume they would have a plan for when, not if, they find me.) I'd give them a warning if I could safely, and if they continue after that, they probably do intend to kill me. (But I still won't shoot an unarmed 12 year old, etc.)
It's called "disparity of force" and the fact that he is twice your size and half your age is taken into account. Ability, Opportunity, Jeopardy. All three of those must be present for a deadly force situation. If he is twice your size, half your age, and starts showing off his taijutsu skills, then he has Ability. If he is close enough to hurt you, he has opportunity. If you feel that you are in jeopardy of death or serious bodily injury, then you have jeopardy. If it is a fair fight, then you don't have ability or jeopardy, and you should not be using lethal force.
When you put it that way, it does sound pretty ridiculous. But yes. You see, you can't shoot people because they might give you a black eye. You have to feel fear for your life, or fear of serious bodily harm. Bruises are not serious bodily harm. What the court will consider serious bodily harm would require hospitalization.
HOWEVER, depending on where you live, you can defend yourself from someone who is committing a felony against you. In this case, you have described a mugging. In Washington state, the person in committing a felony, so it is justifiable homicide.
Typically in a mugging situation, if the person doesn't have strength or a weapon, he usually has numbers (as in friends) to use against you. Numbers would qualify as disparity of force. 3 or 4 guys threatening to beat you up at once is not a fair fight, and you can reasonably fear for your life.
Pretty much. Try to escape, call the cops, do anything you can. But in the end, if you can take the punch, you will be much happier that you did than if you have to fight this thing in court because you shot the guy.
So to summarize, you have to have reasonable fear for your life or from serious bodily injury to use deadly force. Anything short of that, and you are going to go to prison.
Admittedly, I'm not a lawyer, and my understanding of the Oregon judicial system is limited. As each case is unique in the end its the totality of the evidence. But if there was sufficient witness testimonies and obvious threat factors, and if you have taken a ccw course or other proper training your innocence will end up being proven.
In the area where I live, we had a shooting of an unarmed man last year. The man was drunk and broke into a house to take a nap. The woman of the house got home, found the man there, called her husband, who came home and shot the man, no questions asked. He was found guilty. The threat factors and totality of the circumstances where found not to be in the shooters favor.
However, had the shooter had some sort of training, and the threat more active, it would have been justified by the jury here. A lot of it has to do with the mentality of the jury. In southern Oregon, there is the attitude that if the threat had it coming, and was given opportunity to stop, then it will probably be found justified.
This entire situation in my opinion seems to support open carry. Since it's illegal to brandish in VA to even scare a bad guy away if lethal force isn't authorized. Open carry gets you the desired affect without brandishing. If an unarmed man attacked another man who has a gun on his hip you know something is wrong with him.
All this talk of actually shooting. Doesn't anyone believe in the deterrent effect of SHOWING a firearm to an attacker?
That's back to this whole "If you draw it you have to shoot it" mentality.
I know, everone hates the "In Texas we....." but, I am gonna do it anyway.
We have a law here, and I am wondering about other places, that addresses this exact thing.
If you are in a situation where you would be OK using force, but not deadly force, you may draw and aim your firearm to give the THREAT of deadly force without it actually BEING deadly force until you pull the trigger.
Do any other states have similar? Seems to make perfect sense to me.
Even if there was no such law I might risk a charge of "brandishing" before I'd let someone beat on me long enough to justify deadly force.
The only time I ever drew my concealed weapon was in exactly this kind of situation.
Sometimes just the bad guy SEEING the gun can stop things. If it's a tool why not use all of its capabilities?
In Virginia that would be illegal. You can not brandish unless deadly force is authorized. Which means you can have a firearm on you and still have to take an ass beating. I can't speak for other states.
"All this talk of actually shooting. Doesn't anyone believe in the deterrent effect of SHOWING a firearm to an attacker?"
Concurred, but the topic was about the legality of shooting an unarmed man.
Exactly, seems like the OP went straight to the shooting, which is why I am presenting alternatives.
The OP asked:
That doesn't mean you have to start shooting, there might be other ways to legally deal with an unarmed man.
What exactly is "brandishing" in VA. Low class misdemeanor or something more serious?
If the whole idea is to survive the enconuter with the least chance of going to prison it seems like displaying the firearm might be worth considering.
As several have mentioned, there might be problems with actually shooting an unarmed man if not very clearly a deadly threat to you so, would risking the brandishing charge actually be safer in states that don't allow threats? Something to think about anyway.
Absolutely. A firearm is not a bargaining tool, but there are situations where you can do the "stop or I'll shoot" bit. I've done it before, and it works very well. However, if I wasn't in a situation where I could pull the trigger legally, I wouldn't be pointing a gun at someone.
I could be wrong, but I read somewhere that when a cop points a gun at someone it is not considered use of force, but instead it is considered a "display of force". It only becomes "use of force" when he pulls the trigger. I don't think that non-leo civilians have as much leniency with display of force, but we might. I just try not to have to draw a weapon if I don't have to, and it gets me by just fine.
That's why I was asking about other state laws, I don't honestly know but in Texas non LE are covered in a similar manner. There still has to be justification to use force to draw, but there does not have to be justification to use deadly force.
So, some drunk moron, mugger, whatever, comes up to you out of the blue and punches you, you can draw the gun and threaten him without it being deadly force. There is specific language in the law of course. I just don't remember ever seeing that talked about in any other state law so it might really not apply anywhere else.
If not, seems like a good law to ask your reps to sponsor. Seems like these state laws that don't allow this kind of thing are almost asking for increases in shootings by not giving law abiding citizens a choice.
I am more likely to disengage than brandish a weapon. I prefer to avoid conflict, and if a altercation is imminent, I will try to talk my way out of it. If my life is threated, I will use physical force or deadly physical force as necessary.
I was in a 24 hour convience store when it got knocked over about 8 months ago. The robber had a rather large combat knife, was larger than me, and seemed to be very motivated to rob this place and would put up a fight. At the time I had my 9mm AMT on me, but opted not to use it and be a good witness instead of getting involved. I stayed near the fountain drinks with my hands insight to the badguy, he stole about $150 from the cashier, ignored me, and went on his way. I rushed to the door, got his license plate number and his heading. I then waited for the police to show up and calmed the lady behind the counter down.
What would you have done if he decided to rob you as well?
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