Tricky question regarding armed self-defense away from home

[DentThat]

I plan on obtaining a CWC license in the state of Ohio, however there are questions of legality that have concerned me lately.

I believe for the sake of simplicity, it would be best if I present my question through a rather exaggerated hypothetical situation:


You're walking outside and 3 unarmed, well dressed, gentlemen walk up to you. They force you to go with them so they can kill you...
Unwilling, you pull out your handgun (you have a CWC license) but they call your bluff and try to grab the gun so you shoot all 3 dead. The police arrive on the scene and see you leaving w/ the gun on you.


Now in the event that you are brought before a judge and a jury, how would one be able to demonstrate that the shootings were out of self-defense and not murder; provided that there is no available witnesses?

Thanks. (sorry if my story was too extreme)

 

[winston smith]

Is one of the well dressed gentlemen cigarette smoking man?

Because the likelyhood of your being kndnapped by unarmed men in black belongs on FOX or FX, not a major network.

Oh yes, one assumes they have fingerprints, but that they are not on file anywhere.

And what are the police to assume was your motivation for the shooting? Dislike of their neckties?

The only people likely to do anyone harm will have a rap sheet and be well known to the local police.

Don't worry, just carry. You are one of the good guys.

 

[Travis Bickle]

Now in the event that you are brought before a judge and a jury, how would one be able to demonstrate that the shootings were out of self-defense and not murder; provided that there is no available witnesses?

In most states, it would be up to the prosecution to demonstrate that the shootings were not out of self defense. This would be a difficult job, since self-defense would be the only reasonable motive for you to kill three people you'd never met, and anyone attempting a kidnapping probably already has a rap sheet a mile long and is well known to the authorities as a criminal.

 

[NavyLCDR]

The police arrive on the scene and see you leaving w/ the gun on you.

The police would probably shoot you. Why would you be leaving? That would be a huge boost to the prosecution's case: "If it was self defense, then why was the alleged victim fleeing the scene?"

since self-defense would be the only reasonable motive for you to kill three people you'd never met

Travis, I tend to disagree with that statement. That's why I carry a gun is to defend myself against the people who would like to do me harm for unreasonable motives.

 

[franconialocal]

Every state is going to be different, but usually your use of a firearm in self defense is dictated by the IMMINENT use of deadly force against you. So at what point do these three un-armed men cross the line?? Would a court look favorably on you that three guys taking you away "to kill you" is imminent?? Perhaps. It's very dynamic, and unfortunately there is no clear cut answer.

I'll throw an example out there (to clarify how dynamic police work can be too)....

I work in an area that is very very rural. Sometimes my backup, depending on call schedules with the local PD's, State Police, etc. can be as far as 1/2 hr. --maybe even 45min. or more away. Compared to, say, Manchester, Nashua, Concord, Portsmouth etc where the backup will be responding much faster (within minutes), the standard to which I am held by way of responding with deadly force will be scrutinized much differently and may come much "sooner" than in other areas. Also, things like the size, age, gender, mental state of mind of the individual, etc. etc. will also be scrutinized. But this doesn't nec. "change the rules" for me ultimately. I would still need to prove the IMMINENT use of deadly force upon me to justify using it.....backup or not.

My own personal take? If three guys were physically trying to "kidnap" me with unknown intent?.....I'm pretty sure (and please don't QUOTE me on this one) that you would be well witin your "rights" to take action. Notice I said "take action", not nec. deadly force (e.g. brandish you weapon, try to get away, hold them at gunpoint until help arrives....etc.) And therin lies the problem. The courts, atty.s, defense, etc. are going to tear it apart regardless........
Use your best judgement. I think if the court hears the truth about your situation, and that you were in fear for your life LEGITIMATELY then you would come out ok........but then comes the civil court end of things......
Hope this helps!

 

[Hungry Seagull]

No leaving here. I would stick around. The LEO's are going to want to talk to me. Besides three down Im still functional and the one who wants the LEOs to come.

I base my premise on not allowing anyone within range to physically take hold of me and possibly take control of my weapon. That little but strap isnt going to hold it much if they get that close.

Gunpoint on the leader at about 15 feet while backing up as necessary to prevent the other two from spreading out left to right too far to the sides. Hopefully with the cell going out on 911 voice activated code or simple speed dial.

But what do I know? Just a average joe who knows very little about courthouse law. I do know that there will probably be trouble anyway, but not enough to fire on them.... yet. They can stand there all day but if they keep trying to close the distance and I run out of retreat.. well.. I guess it will end there.

However, I have no illusions about my ability to take three targets. I might get one and ding the second but the third will probably take me easily.

 

[Duke of Doubt]

I've been trying to think of how to isolate and address the legal issues presented, but I can't. Most of my fantasies about being kidnapped by mysterious strangers in big cars involve exotic and dangerous women, not men in raincoats.

 

[wep45]

you shot and murdered three unarmed people...........you are going to jail

that's what the 12 jury members would conclude

 

[Hungry Seagull]

I dont fantasy. Ive had dreams of gingerbread, chrome, silver ladies and large cars... but that was long ago. LOL.

 

[Krazeehorse]

Bottom line, make sure you HAD to shoot. You were in fear for your life. You shot to stop the threat. And make sure you have access to the funds for a retainer for a defense lawyer. You will need one before the grand jury convenes (although it's possible you won't be charged). But you will certainly be dealing with civils suits brought by the scumbags' survivors. So if you carry be prepared to hire an attorney.

 

[Frank Ettin]

...Now in the event that you are brought before a judge and a jury, how would one be able to demonstrate that the shootings were out of self-defense and not murder; provided that there is no available witnesses?...

Beats me, and I am a lawyer. The thing is that these sorts of vague, open ended hypotheticals can't really be answered. The devil is in the details, and we don't have them here. A few observations, however --

[1]

...The police arrive on the scene and see you leaving w/ the gun on you....

Why are you leaving? You have just committed multiple homicide, and flight equates to guilt. You stay, get out your cell phone, call 911 and tell them that you have just been attacked by three thugs and defended yourself. You ask for police and an ambulance. And then you wait.

What? You don't have a cell phone! Well get one. It's a necessary piece of emergency equipment.

[2]

In most states, it would be up to the prosecution to demonstrate that the shootings were not out of self defense....

Not quite. The prosecutor must prove the elements of the crime. If you're charged with murder, he must prove you committed the homicide with malice. If you're charged with manslaughter, he need only prove that you committed the homicide (that is that you killed the decedent).

Now here's the tricky part. If you are claiming self defense, you must admit the elements of the crime of manslaughter. You admit that you killed the decedent. Now the prosecutor doesn't need to prove that. You've admitted it.

So your defense is that even though you committed homicide, your act was justified. Now it is your burden to prove, or in some jurisdictions at least put forth evidence of, the elements necessary to support a claim of justified use of lethal force in self defense. And now the prosecutor needs to rebut your claim of justification.

To show the justified use of lethal force in self defense you must generally show that a reasonable and prudent person, in like circumstances and knowing what you know, would conclude that lethal force is necessary to prevent otherwise immediate, unavoidable death or grave bodily injury to an innocent. To demonstrate that there was indeed a real danger from the assailant, one must show that the assailant had (1) the Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm; (2) the Opportunity, i. e., the assailant was capable of immediately deploying such force; and (3) put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he has the intent to kill or cripple. A person claiming self defense will need to be able to articulate why in the exact situation as it unfolded he concluded that lethal force was necessary based in the forgoing paradigm. And of course, the exact formulation can vary somewhat from jurisdiction to jurisdiction, the the forgoing will do in most cases.

What evidence do you have to support your defense? Well as the OP outlines the problem, his primary evidence will be his testimony. There may also be other evidence, forensic evidence, including the nature of the decedents' wounds, the position of the bodies, perhaps gunshot residue, etc. But the defendant will primarily have to rely on his testimony to make his self defense case. So now it becomes important that the jury believes your story.

That's how it is in real life.

 

[Claude Clay]

i hope you wake up from this nightmare before the gavel falls.....

ps: by your late 20's you should stop eating pepperoni pizza before bed

 

[eye5600]

I was pondering a similar question yesterday. Concealed Carry is advocated by many on the grounds that an armed right-thinking person may be present to stop a BG who is shooting innocent people. What's the legal theory that protects someone who uses deadly force on behalf of a third party, one that he does not even know? It seems like it's pretty well covered by Fiddletown's longest paragraph.

It seems like there could be huge legal risk in any intervention before a gun is pointed, and maybe even anytime before a gun is fired.

 

[Krazeehorse]

In Ohio it is my understanding that your first obligation is to avoid the confrontation if at all possible. That means turning and running if you have to. Now if you have friends and/or family with you then you all need to be able to avoid it. So if I understand eye5600's question if you were walking up to a convenience store and saw an armed robbery in progress your first obligation is to get to safety and call 911. You are not justified in going inside and acting as a LEO. That is how I understand Ohio's law. Basically the gun is for when you are cornered. And I will be the first to admit that I may be wrong. I definitely know that you really REALLY want to be sure it was necessary if you decide to shoot someone.

 

[HIcarry]

Fiddletown,

Thanks for the explanation...I do have a couple of questions.

First, am I correct in understanding that your definition is what is commonly known as an "Affrirmative defense?" If so, how would you interpret a statue that says you need to provide "justification" for the act of self-defense, but that "justification" is not an affirmative defense? Here's Hawaii's statue that is the basis for the question. Thanks.

§703-301 Justification a defense; civil remedies unaffected. (1) In any prosecution for an offense, justification, as defined in sections 703-302 through 703-309, is a defense.

(2) The fact that conduct is justifiable under this chapter does not abolish or impair any remedy for such conduct which is available in any civil action. [L 1972, c 9, pt of §1]

COMMENTARY ON §703-301

This section does not attempt to define the defense of justification. An extended definition is given in the sections which follow. Subsection (1) merely establishes that justification is a defense. This places the burden of producing some credible evidence of the existence of justification on the defendant. If the defendant produces such evidence, or if it appears as part of the prosecution's case, the defendant is entitled to have the defense considered by the jury. The prosecution, however, must prove beyond a reasonable doubt, facts which negative the defense.

Subsection (2) preserves civil remedies for conduct which may give rise to a defense of justification. Civil standards of conduct are higher than we propose for criminal liability. For example, unreasonable conduct on the part of the defendant might suffice for civil liability whereas criminal liability will turn on the defendant's own subjective mental state. It therefore seems desirable explicitly to preserve civil remedies.

Prior Hawaii statutory and case law recognized some of the defenses which the Code unites in this chapter under the defense of justification. Reference to such recognition will be made in the commentary under the sections which follow. There is some language in old Hawaii case law which indicates that the defense of justification is affirmative in nature;[1] to the extent that this language would be followed today, the Code represents a change.

Case Notes

Justification is not an affirmative defense and prosecution has burden of disproving it once evidence of justification has been adduced. 60 H. 259, 588 P.2d 438.

Defendant's claim of justification, in defense against prosecution for terroristic threatening, was established regardless of whether or not defendant used deadly force. 1 H. App. 167, 616 P.2d 229.

"Choice of evils" defense applies to violations. 9 H. App. 115, 826 P.2d 884.
__________

§703-301 Commentary:



1. King v. Bridges, 5 Haw. 467, 472 (1885); Provisional Government v. Caecires, 9 Haw. 522, 533 (1894).

 

[Frank Ettin]

...how would you interpret a statue that says you need to provide "justification" for the act of self-defense, but that "justification" is not an affirmative defense?...

[1] Hawaii law is the law only in Hawaii. The laws of each State are different.

[2] The statute doesn't say that justification is not an affirmative defense. One sentence quoted from a court decision says it's not an affirmative defense. Note that the commentary you cite even states that the statute you quote, §703-301, "..does not attempt to define the defense of justification...."

[3] "A rose by any other name...." Under Hawaii's unique procedural framework, there may be a technical reason why justification would not be classified as an affirmative defense, but it operates in many ways like those defenses generally characterized as affirmative defenses in other jurisdictions. So it is still up to the defendant to pled the defense of justification. It will also be up to the defendant to produce evidence to support his assertion of justification. Under Hawaii law, the prosecution then has the burden of disproving the defense. How the prosecution does that will depend on the exact circumstances. Where the only evidence of justification is the testimony of the defendant, it may be sufficient for the prosecution to simply discredit that testimony to the satisfaction of the jury. The jury doesn't have to believe the defendant's testimony.

[4] For more background on affirmative defenses generally, see:

http://en.wikipedia.org/wiki/Affirmative_defense

http://www.nolo.com/definition.cfm/term/002F8ABF-5B97-474D-A6961173CD8432F9

http://www.fd.org/pdf_lib/Beneman_Affirmative_Defenses_materials.pdf

 

[HIcarry]

Fiddletown,

Thanks for the info....I know each state is different, so that wasn't the issue for me. Nor was the basic concept of an affirmative defense. It was, as you noted, the seemingly obvious "affirmative defense" situation, but the case notes (are they referred to as dictum in statuatory language?) made think I had missed something.

The subsequent portions of the statue does go into describing "justification" for the use of deadly force, such as fear of great bodily injury, death, rape, forcible sodomy or kidnapping, so again, any defense of a use of deadly force seemed to fit the affirmative defense model pretty well. Which, of course, only contributed more to my concern I had missed something.

Thanks again for the reply.

Aloha

 

[kowenjr]

There's the concept of "disparity of force" which would give you the right to take out two of the three unarmed men but not the third since you have leveled the playing field and are now mano e mano. You could get in trouble for taking out the last guy because you were armed and he was not so how was he a threat?

 

[DentThat]

Thanks for the great responses everyone!

you shot and murdered three unarmed people...........you are going to jail

that's what the 12 jury members would conclude

So...I just let them overpower me and have their freewill at me?

But you will certainly be dealing with civils suits brought by the scumbags' survivors. So if you carry be prepared to hire an attorney.

That's a lot of headaches and money just so you can save your own life...

 

[Jeff White]

You're walking outside and 3 unarmed, well dressed, gentlemen walk up to you. They force you to go with them so they can kill you...

What do you do or have you done in your life that would make 3 unarmed, well dressed men want to kidnap and murder you?

I know that the newscasts will make most people think otherwise, but we really do live in a very safe society. Violent crime most often happens to people in certain social/economic classes. Basically, if you don't live a criminal lifestyle, hang out with those who do, have a family member who lives a criminal lifestyle, or have someone in your family, immediate circle who is emotionally disturbed and prone to violence, or go the the places where these kind of people live and hang out, your chances of being a victim of a violent crime go down dramatically.

Unwilling, you pull out your handgun (you have a CWC license) but they call your bluff and try to grab the gun so you shoot all 3 dead.

If you draw your handgun, it shouldn't be to bluff. You need to be ready to use it as soon as you clear the holster. If the bad guys run off at the sight of the weapon, so much the better. If they don't then you need to use the weapon.

The police arrive on the scene and see you leaving w/ the gun on you.

Why are you leaving the scene? Leaving the scene or doing anything to try to cover up the killing or altering any evidence of what happens, not only is a good indicator of possible guilt, but it could be a crime in it's own right. If you are in a defensive shooting you need to stay at the scene, or near to the scene and deal with the consequences of your actions. See this thread:
http://www.thehighroad.org/showthread.php?t=430819 for some discussion on what to do after a shooting.

Now in the event that you are brought before a judge and a jury, how would one be able to demonstrate that the shootings were out of self-defense and not murder; provided that there is no available witnesses?

You are going to have to be able to tell your story in a way that make a reasonable person believe that if he was confronted with the same situation that your course of action would have been reasonable.

 

[Hungry Seagull]

Living a good life, a clean life away from vices and those who are engaged in such and requires some kind of low level criminal activity assures that you will probably live a good peaceful life.

I advocate a tatical retreat to a place of safety or last stand depending on your geographical situation. Just dont run, if you run they become like a pack of dogs with the chase the prey instinct.

There has not been any kind of communication from the three in this scenario has there? Usually there would be something said. Like "Hey you!!! Come here!!!!"

WHAT? No way, go away. And keep going in a direction away.

If they continue to close the distance..... it's going to get stressful then aint it?

You should continue to demand or challenge thier status. If they are Federal Marshals, they will ID themselves, If they are LEO's they will ID themselves if they are any other kind of LAWFUL Authority they will ID themselves.

If these three dont ID themselves, then you need to be on Cell 911 and continue to try and get out of the immediate area.

Draw only as a last resort where you have no more room left or they are reaching out to grab you.

I aint trained in anything, ive gotten myself out of danger by simply keeping one hand on the blade and moving out of danger.