Should You Draw ONLY IF your going to fire?

[buck460XVR]

No, that is not how the law reads. That is how the law was summarized when the signing of the law was reported. "How the law reads" is what it says in the statute books.

I know it was a summary. I was not going to post the whole of it. If you look you'll see the statutes are listed if you want to read and reference them.

 

[RetiredUSNChief]

An interesting observation here with respect to Castle Doctrine laws:

Many anti-gun people spread the common misconception that Castle Doctrine laws allow people to shoot others without fear of prosecution...legal murder, in their eyes.

We also have many pro-gun people who spread the common misconception that Castle Doctrine laws somehow exempt them from criminal or civil prosecution.


Feather these two birds any way you wish with whatever qualifiers you want, but there's a striking similarity between these two beliefs that seems to be rooted in the common misunderstanding of what these laws actually say and what they actually mean. And, indeed, how they work in real life scenarios in real world law and order.

 

[Frank Ettin]

No, that is not how the law reads. That is how the law was summarized when the signing of the law was reported. "How the law reads" is what it says in the statute books.

I know it was a summary. I was not going to post the whole of it. If you look you'll see the statutes are listed if you want to read and reference them.

1. But that's not what you wrote in post 81. What you actually wrote was:

   ...This is how "Castle Doctrine" reads here...

   
   And therefore your statement in post 81 was wrong and misleading.
   
   
2. And I have read the statute. It's not substantively different from other States' laws, as were discussed in the threads I linked to in post 100.

 

[Lone Ranger]

MY 2 cents, YMMV. I believe terminating the threat can be achieved by either drawing the weapon, drawing the weapon and firing - absolutely the last resort - or by displaying the weapon while still in its retention position. The purpose is to terminate the threat/attack. If the person(s) flees upon seeing the weapon prior to firing the weapon - "come any closer and I will shoot", then the threat/attack is terminated, either by drawing or displaying. If the person(s) presses the threat/attack - after warning given - and firing is necessary the threat is terminated by striking the person(s) causing the person(s) to flee, cease from pressing the threat/attack by dropping the weapon the person(s) is using - while standing or falling to the ground - or the shot(s) results in the fatality of the person(s). In all of this the idea of great bodily harm or death to oneself or another - usually a loved one - is the motivation in wanting to terminate the threat, which, again, can be achieved by drawing the weapon, drawing the weapon and firing, or displaying the weapon. Correctly articulating to law enforcement what one believed and what one did prior to and/or during the threat/attack goes a long way in justifying one's actions. Again, YMMV.

 

[scaatylobo]

btw

I see a country mile between "drawing" and actually aiming a firearm at another.

Just another observation from one that has done both a 'few' times.

 

[Kleanbore]

Posted by RetiredUSNChief: An interesting observation here with respect to Castle Doctrine laws:

Many anti-gun people spread the common misconception that Castle Doctrine laws allow people to shoot others without fear of prosecution...legal murder, in their eyes.

We also have many pro-gun people who spread the common misconception that Castle Doctrine laws somehow exempt them from criminal or civil prosecution.


Feather these two birds any way you wish with whatever qualifiers you want, but there's a striking similarity between these two beliefs that seems to be rooted in the common misunderstanding of what these laws actually say and what they actually mean. And, indeed, how they work in real life scenarios in real world law and order.

That thought has occurred to me a number of times.

 

[cdb1]

I would say don't draw unless you are WILLING to fire. Once drawn theres a lot of good reasons to not shoot, but leave the gun in the holster if its a situation in which you would be unwilling to fire.

I agree. If were to draw it would be because I am intending to shoot but if the BG ceased being hostile, such as fleeing then I would not fire.

 

[buck460XVR]

1. But that's not what you wrote in post 81. What you actually wrote was:
   ...This is how "Castle Doctrine" reads here...​
   
   And therefore your statement in post 81 was wrong and misleading.
   
   

1. 
   
   I didn't write this is how the "statute" reads, I assumed most folks with enough intelligence to CWC would realize this was a summation of the whole statute. There was no incorrect information in the summary. Again, I provided the statute numbers so folks could read them for themselves if they wanted.
   
   Sorry if I confused anyone.
   
   
   Here ya go Frank and anyone else I may have confused....This is exactly how our Statutes read.
   
   939.48  Self-defense and defense of others.
   (1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.
   (1m) 
   (a) In this subsection:
   1. "Dwelling" has the meaning given in s. 895.07 (1) (h).
   2. "Place of business" means a business that the actor owns or operates.
   (ar) If an actor intentionally used force that was intended or likely to cause death or great bodily harm, the court may not consider whether the actor had an opportunity to flee or retreat before he or she used force and shall presume that the actor reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself if the actor makes such a claim under sub. (1) and either of the following applies:
   1. The person against whom the force was used was in the process of unlawfully and forcibly entering the actor's dwelling, motor vehicle, or place of business, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that an unlawful and forcible entry was occurring.
   2. The person against whom the force was used was in the actor's dwelling, motor vehicle, or place of business after unlawfully and forcibly entering it, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that the person had unlawfully and forcibly entered the dwelling, motor vehicle, or place of business.
   (b) The presumption described in par. (ar) does not apply if any of the following applies:
   1. The actor was engaged in a criminal activity or was using his or her dwelling, motor vehicle, or place of business to further a criminal activity at the time.
   2. The person against whom the force was used was a public safety worker, as defined in s. 941.375 (1) (b), who entered or attempted to enter the actor's dwelling, motor vehicle, or place of business in the performance of his or her official duties. This subdivision applies only if at least one of the following applies:
   a. The public safety worker identified himself or herself to the actor before the force described in par. (ar) was used by the actor.
   b. The actor knew or reasonably should have known that the person entering or attempting to enter his or her dwelling, motor vehicle, or place of business was a public safety worker.
   (2) Provocation affects the privilege of self-defense as follows:
   (a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
   (b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
   (c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.
   (3) The privilege of self-defense extends not only to the intentional infliction of harm upon a real or apparent wrongdoer, but also to the unintended infliction of harm upon a 3rd person, except that if the unintended infliction of harm amounts to the crime of first-degree or 2nd-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, first-degree or 2nd-degree reckless injury or injury by negligent handling of dangerous weapon, explosives or fire, the actor is liable for whichever one of those crimes is committed.
   (4) A person is privileged to defend a 3rd person from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend himself or herself from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such that the 3rd person would be privileged to act in self-defense and that the person's intervention is necessary for the protection of the 3rd person.
   (5) A person is privileged to use force against another if the person reasonably believes that to use such force is necessary to prevent such person from committing suicide, but this privilege does not extend to the intentional use of force intended or likely to cause death.
   (6) In this section "unlawful" means either tortious or expressly prohibited by criminal law or both.
   History: 1987 a. 399; 1993 a. 486; 2005 a. 253; 2011 a. 94.
   Judicial Council Note, 1988: Sub. (3) is amended by conforming references to the statute titles as affected by this bill. [Bill 191-S]
   When a defendant testified that he did not intend to shoot or use force, he could not claim self-defense. Cleghorn v. State, 55 Wis. 2d 466, 198 N.W.2d 577 (1972).
   Sub. (2) (b) is inapplicable to a defendant if the nature of the initial provocation is a gun-in-hand confrontation of an intended victim by a self-identified robber. Under these circumstances the intended victim is justified in the use of force in the exercise of the right of self-defense. Ruff v. State, 65 Wis. 2d 713, 223 N.W.2d 446 (1974).
   Whether a defendant's belief was reasonable under subs. (1) and (4) depends, in part, upon the parties' personal characteristics and histories and whether events were continuous. State v. Jones, 147 Wis. 2d 806, 434 N.W.2d 380 (1989).
   Evidence of prior specific instances of violence that were known to the accused may be presented to support a defense of self-defense. The evidence is not limited to the accused's own testimony, but the evidence may not be extended to the point that it is being offered to prove that the victim acted in conformity with his or her violent tendencies. State v. Daniels, 160 Wis. 2d 85, 465 N.W.2d 633 (1991).
   Imperfect self-defense contains an initial threshold element requiring a reasonable belief that the defendant was terminating an unlawful interference with his or her person. State v. Camacho, 176 Wis. 2d 860, 501 N.W.2d 380 (1993).
   The reasonableness of a person's belief under sub. (1) is judged from the position of a person of ordinary intelligence and prudence in the same situation as the defendant, not a person identical to the defendant placed in the same situation as the defendant. A defendant's psycho-social history showing past violence toward the defendant is generally not relevant to this objective standard, although it may be relevant, as in spousal abuse cases, where the actors are the homicide victim and defendant. State v. Hampton, 207 Wis. 2d 369, 558 N.W.2d 884 (Ct. App. 1996).
   The right to resist unlawful arrest is not part of the statutory right to self-defense. It is a common law privilege that is abrogated. State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), 96-0914.
   While there is no statutory duty to retreat, whether the opportunity to retreat was available goes to whether the defendant reasonably believed the force used was necessary to prevent an interference with his or her person. A jury instruction to that effect was proper. State v. Wenger, 225 Wis. 2d 495, 593 N.W.2d 467 (Ct. App. 1999), 98-1739.
   When a defendant fails to establish a factual basis to raise self-defense, prior specific acts of violence by the victim have no probative value. The presentation of subjective testimony by an accused, going to a belief that taking steps in self-defense was necessary, is not sufficient for the admission of self-defense evidence. State v. Head, 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9, 99-3071.
   Although intentionally pointing a firearm at another constitutes a violation of s. 941.20, under sub. (1) a person is privileged to point a gun at another person in self-defense if the person reasonably believes that the threat of force is necessary to prevent or terminate what he or she reasonably believes to be an unlawful interference. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.
   A defendant asserting perfect self-defense against a charge of 1st-degree murder must meet an objective threshold showing that he or she reasonably believed that he or she was preventing or terminating an unlawful interference with his or her person and that the force used was necessary to prevent imminent death or great bodily harm. A defendant asserting the defense of unnecessary defensive force s. 940.01 (2) (b) to a charge of 1st-degree murder is not required to satisfy the objective threshold showing. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.
   When a defendant successfully makes self-defense an issue, the jury must be instructed as to the state's burden of proof regarding the nature of the crime, even if the defense is a negative defense. Wisconsin JI-Criminal 801 informs the jury that it "should consider the evidence relating to self-defense in deciding whether the defendant's conduct created an unreasonable risk to another. If the defendant was acting lawfully in self-defense, [his] conduct did not create an unreasonable risk to another." This instruction implies that the defendant must satisfy the jury that the defendant was acting in self-defense and removes the burden of proof from the state to show that the defendant was engaged in criminally reckless conduct. State v. Austin, 2013 WI App 96, ___ Wis. 2d ___, ___ N.W.2d ___, 12-0011.
   When the circuit court instructed the jury to "consider the evidence relating to ... defense of others, in deciding whether defendant's conduct created an unreasonable risk.... If the defendant was acting lawfully in defense of others, his conduct did not create an unreasonable risk to another," the instruction on the state's burden of proof on defendant's defense of others defense was wholly omitted and the instructions were erroneous. State v. Austin, 2013 WI App 96, ___ Wis. 2d ___, ___ N.W.2d ___, 12-0011.
   A person may employ deadly force against another, if the person reasonably believes that force is necessary to protect a 3rd-person or one's self from imminent death or great bodily harm, without incurring civil liability for injury to the other. Clark v. Ziedonis, 513 F. 2d 79 (1975).
   Self-defense — prior acts of the victim. 1974 WLR 266.
   State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin's Law of Imperfect Self-defense Homicide. Leiser. 1995 WLR 742.
   Home Safe Home: Wisconsin's Castle Doctrine and Trespasser Liability Laws. Hinkston. Wis. Law. July 2013.
   
   895.62  Use of force in response to unlawful and forcible entry into a dwelling, motor vehicle, or place of business; civil liability immunity.
   (1) In this section:
   (a) "Actor" means a person who uses force that is intended or likely to cause death or great bodily harm to another person.
   (b) "Dwelling" has the meaning given in s. 895.07 (1) (h).
   (c) "Place of business" means a business that the actor owns or operates.
   (2) Except as provided in sub. (4), an actor is immune from civil liability arising out of his or her use of force that is intended or likely to cause death or great bodily harm if the actor reasonably believed that the force was necessary to prevent imminent death or bodily harm to himself or herself or to another person and either of the following applies:
   (a) The person against whom the force was used was in the process of unlawfully and forcibly entering the actor's dwelling, motor vehicle, or place of business, the actor was on his or her property or present in the dwelling, motor vehicle, or place of business, and the actor knew or had reason to believe that an unlawful and forcible entry was occurring.
   (b) The person against whom the force was used was in the actor's dwelling, motor vehicle, or place of business after unlawfully and forcibly entering it, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or had reason to believe that the person had unlawfully and forcibly entered the dwelling, motor vehicle, or place of business.
   (3) If sub. (2) (a) or (b) applies, the finder of fact may not consider whether the actor had an opportunity to flee or retreat before he or she used force and the actor is presumed to have reasonably believed that the force was necessary to prevent imminent death or bodily harm to himself or herself or to another person.
   (4) The presumption described in sub. (3) does not apply if any of the following are true:
   (a) The actor was engaged in a criminal activity or was using his or her dwelling, motor vehicle, or place of business to further a criminal activity at the time he or she used the force described in sub. (2).
   (b) The person against whom the force was used was a public safety worker, as defined in s. 941.375 (1) (b), who entered or attempted to enter the actor's dwelling, motor vehicle, or place of business in the performance of his or her official duties. This paragraph applies only if at least one of the following applies:
   1. The public safety worker identified himself or herself to the actor before the force described in sub. (2) was used by the actor.
   2. The actor knew or reasonably should have known that the person entering or attempting to enter his or her dwelling, motor vehicle, or place of business was a public safety worker.
   (5) In any civil action, if a court finds that a person is immune from civil liability under sub. (2), the court shall award the person reasonable attorney fees, costs, compensation for loss of income, and other costs of the litigation reasonably incurred by the person.
   (6) Nothing in this section may be construed to limit or impair any defense to civil or criminal liability otherwise available.

 

[Frank Ettin]

Here ya go Frank and anyone else I may have confused....

Yes I know. I've read it. And it's not a question of your confusing anyone. It's a question of your inaccurate statement. It's about your not expressing yourself precisely.

In any case, since I guess you missed it, in post 103 I wrote:

...I have read the statute. It's not substantively different from other States' laws, as were discussed in the threads I linked to in post 100.

 

[Quentin]

There is no definitive blanket answer. To many scenarios.

I agree, too many scenarios. Sometimes it's best to keep your firearm concealed, other times displaying it will diffuse the threat.

I've read stats that for every self defense shooting there are 14 times where the confrontation is ended without firing a shot. (14 out of 15 times, just displaying a gun ends the threat.) It's impossible to prove the ratio but it is believable, no one wants to agitate a man/woman with a gun!

 

[Trent]

Trent, where you'll be told you're wrong is that many states have some sort of "Castle Doctrine" (as you, of course, know) which, you'll be told, makes the state assume you were in the right and not prosecute you if you claim self-defense.

What that generally overlooks is the fact that all such presuppositions of justification are rebuttable -- meaning that if anything looks at all questionable about your version of what happened, or the independent observer (investigator) doesn't see things the way you see them, the state proceeds with a prosecution, Castle Doctrine or no.

CDs CAN help the righteous defender, and ARE a very good thing. They are NOT any kind of get out of jail free card, or license to do one single thing that you wouldn't do in defending yourself in any other place or situation.

Yes, I've been in many discussions about this very thing, about whether Illinois has "Castle Doctrine", and what it means for justified use of force.

Illinois law, in particular, goes on to read for each of our justified use of force statues the following:

(b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7-4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.

Source; (720 ILCS 5/7-1) (from Ch. 38, par. 7-1)
Sec. 7-1. Use of force in defense of person.
Sec. 7-2. Use of force in defense of dwelling.
Sec. 7-3. Use of force in defense of other property.

*If* the use of force is determined to be justified, you are immune from civil procedure from the "aggressor" or any person representing them, unless the use of force involves willful misconduct.

Civil immunity is one thing. But before you can claim that right, the authorities still have to judge you in some fashion to determine if that force was justified.

Having a state's attorney decline to press charges, may not be sufficient for that claim, directly.

Also, some *future* states attorney may decide to prosecute you at any time, especially if new evidence shows up, as there is no statute of limitations on murder. (E.g. 15 years later, a slip of the tongue such as "He got what was coming to him", may turn the tables and bring old skeletons out of the closet.)

I know this thread is about "if you draw, do you fire", which I think has been answered clearly.

But most people - the vast majority of gun owners - have NO idea what's in store for them if they ever DO drop the hammer on someone. They've never done the homework, read the horror stories of the aftermath, or put much thought in to it, at all.

When I teach concealed carry I try to reinforce the concepts that "firing your weapon is an absolute last resort, because it will be a life altering experience for everyone you love and care about."

If the choice is clearly "him or me", don't hesitate. Otherwise, consider your options, there's no "undo" button once you've let lead fly.

 

[Vodoun da Vinci]

When I teach concealed carry I try to reinforce the concepts that "firing your weapon is an absolute last resort, because it will be a life altering experience for everyone you love and care about."

If the choice is clearly "him or me", don't hesitate. Otherwise, consider your options, there's no "undo" button once you've let lead fly.

Trent, Thank You...that was well stated and valuable. As a soon to be CCL holder in Illinois I have particular interest in this thread.

The way I train and the mindset I have developed make it highly unlikely I will draw a gun unless it is highly likely I am going to shoot a person because my life is in imminent danger of being ended. If I draw I will be moving...and I will be moving because I see a weapon pointed at me or another that I believe is about to be used.

I don't see a strategic or tactical advantage to drawing and threatening but understand that this could be dependent on training, circumstances, and jurisdiction/state. I hope I never have to contemplate smoking another individual as I'm quite certain the mental baggage and legal mess afterwards will truly be life altering and should be avoided at almost all costs.

VooDoo

 

[Trent]

Vodoun;

Don't get me wrong, if there's a known threat nearby, get the gun out and in your hand. DO NOT point it at anyone unless you are in immediate danger though. You can get charged for "Assault with a deadly weapon" if you point a weapon at someone in IL, which carries a heavy prison sentence; there is no "justification" clause there, though! So do be careful!

And... Immediate danger doesn't mean you have to wait until the gun is pointed at your face. If you wait until a gun is POINTED at you to draw and engage, it might not end well for you.

The trick is finding that line, and it'll vary with every infinite scenario possible.

 

[1911 guy]

Part of the problem is seeking a static answer (If A, Then B) to a fluid situation.

I will not draw unless I expect to need a tool to deliver potentially lethal force. However, the situation may change in the blink of an eye, resulting in no longer needing to apply force.

In most accounts of confrontations, there seems to be a recurring theme of either having ample time to bring the handgun into play or no time at all. I think Trent captured the idea well in the last post. Infinitely variable.

 

[Hunterdad]

I don't draw unless I'm going to fire. Only drew once on a dog. Luckily it didn't attack, but I was going to fire.

I don't draw as a deterrent and I don't give warning shots.

You just contradicted yourself. If you ONLY drew to fire, then there would be a dead dog.

 

[gym]

Sometimes just being prepared to fire is enough to stop you from having to. Bad guys can sense this also, they don't want to get shot and would prefer to go some ware else if they think you are really going to shoot them. I never met one that would intentionally go up against a guy with a gun, "knowingly". It's a call that only you can make at the time. No one here can tell you what the outcome will be, only what they think, "and they aren't going to be there", you are.
Don't forget that you will not have time to analyze the event as it happens, it will be over in seconds, so you really should learn some training tactics to keep yourself on an even plane with the aggressor. Breathing and staying focused are very important, being able to see past where you may have to fire, and looking for a way out of your predicament along with cover and concealment. Even how you speak to people who are about to try and do something bad is a skill. Some people read and study, take courses, but still go blank when the crap hits, many have seen this in the service. It's too complicated to answer on a forum such as this with a simple yes or no.

 

[dastardly-D]

Why have a weapon on you if you are not of a mindset to fire ? Why would you think you should let someone get the drop on you first before unholstering ? If you draw your weapon and your attacker turns tail then you damn well better not shoot him in the back !:banghead:

 

[gym]

Because unlike the scenario you may have played out in your mind, sometimes the bad guy has already got the "drop" on you. They are Bad not necessarily stupid. I someone is planning to rob you and has given it thought, you more than likely won't see it coming until the last second.
Having had this happen myself, if I knew the guy was waiting 3 weeks for me to show up at my moms house, I surely would not have allowed him to "get the drop on me".

 

[dastardly-D]

GYM I was answering the original question just as he asked it. There are no set rules to a gunfight other than to bring a gun. And if you're going to bring a gun you should have the mindset to use it if needed. Needed is the key word.

 

[Sam1911]

Ok, at over 100 posts it's obvious that no one's reading through the whole thread to see what's already been covered, so we're beating the same ground over and over.

TO SUM:

1) Don't carry unless you've got the mindset to use the weapon if you need to.
2) Situational Awareness is paramount! Awareness, Avoidance, De-escalation, Escape.
3) A gun is not a "STOP" sign, nor a magic talisman. If you're going to put your hand on it, you must be ready to use it. That means you've reached the point where it is do or DIE. You aren't wondering if you can, yet. You are convinced you have NO CHOICE.
4) Just because you pulled your gun doesn't mean you MUST shoot and/or kill. Things change in a fraction of a second. Shooting someone who's stopped the attack, dropped the weapon, surrendered, or is attempting to flee is a criminal act.