What Kind of Advice Is This??

[Powderman]

It is the state's responsibility to show that the accused did not reasonably believe that force was immediately necessary to protect. Note, not whether force actually was necessary or not but whether the defendent reasonably believed it was. The state does not second-guess tactics. The defendent merely claims this and it is up to the state to disprove that claim. That is a hard burden to get 12 people to agree that, no you really werent in reasonable fear.

And, I respectfully recommend that you search in your state's statutes for the definitions of the following:

Murder
Negligent Homicide
Aggravated Assault
Reckless Endangerment
Mayhem
Brandishing

as you can be smacked with some or all of the above if you pull the trigger.

Bottom line is this:

If you can not prove, beyond a reasonable doubt, that you were in IMMINENT danger of death or serious bodily harm; or

That someone in your close proximity was not in the same amount of danger; or

That you were not aiding a sworn police officer who was in danger of the magnitude stated above; or

That you were shooting to stop a person who had just committed a crime of such a heinous nature as to be "shocking to the conscience" and who posed a grave danger to the surrounding community should they be allowed to flee (here, state statutes can vary greatly, check with your local prosecutor)

you WILL be in for a hard ride.

Here's my course of action, from the viewpoint you are talking about, and which you have discussed:

If I am dispatched to a shooting under the circumstances you are talking about, where the shooter and the assailant were of similar build, both in apparent good health, and no deadly weapon was visible in or around the assailant, I would then place you under arrest (possibly at gunpoint) for the crime of Murder, in the appropriate degree. and admonish you concerning your rights as directed under the Miranda v. Arizona ruling.

As, I believe, any other officer on this board would do.

Check with your prosecutor before you ruin your life. Please.

 

[The Rabbi]

You have just demonstrated why cops arent lawyers.
The burden of proof is on the state to show the criminal elements beyond a reasonable doubt. It is not on the defendent to show his innocence. Once the defendent raises the claim of self-defense it is the burden of the state to overcome that defense. If they fail, the defendent goes free.
In states with a duty to retreat the state could show the defendent did not retreat and that might overcome the defense.
In states with other standards the state could show that the defendent did not meet those standards.
But in this state we dont have those things. The prosecution would have to show that the defendent was not in reasonable fear of death or serious bodily harm. The very fact of the shooting actually supports the defendent since people tend to do that only under fear. Ironically if the defendant had first engaged in striking the assailant one might be able to show that this demonstrates he was not in fear and a subsequent shooting would be unjustified.

I would then place you under arrest (possibly at gunpoint) for the crime of Murder, in the appropriate degree.

If you drew and pointed your weapon at someone who was complying with no weapon visible or close at hand I suspect you would be running afoul of department procedures. If so the burden would be on you to demonstrate why that was necessary. If the suspect was a minority I suspect even more that you would be in for some serious questioning, possible disciplinary action.

 

[Mute]

From a survival point of view, it may be short-sighted to not learn other fighting skills other than with a handgun. You can't always just step back and pull your gun. You may wind up having to fight that person before you can present your weapon. You're making the wrong assumption that it's either fight hand to hand or pull your gun. It's not always one or the other.

I think the trainer was just trying to illustrate that use of force is a continuum ranging from shouting a command to shooting the guy to the ground and everything in between. Failure to fight effectively in the early part of that continuum not allow you to live long enough to use your gun. Just some food for thought.

 

[Ankeny]

Rabbi:

Just do whatever you want to do. Don't drop the soap.

 

[spacemanspiff]

rabbi, i'm curious about something. if you have to use deadly force, what do you expect law enforcement to do? do you anticipate being arrested? or do you think that your statement will automatically clear you from being charged with a crime? i want to know what your game plan is after you use deadly force.

 

[SRYnidan]

I am not nearly as articulate as some I have read on this thread but I guess that I have to add my 2 cents. You apparently have a personal aversion to physical violence that leads you to believe that any physical encounter is likely to result in your immediate death or maiming. This does not mean that you will find a jury of twelve reasonable men and women who will share that view. You have been unable to convince hardly any one on this board (which is far more friendly to the concept of armed self defense than the populace in general(even in TN)) that your belief is reasonable and yet this is the standard by which you will be judged.

As my tagline would indicate I hold an instructor ranking in one of the less commercially encountered martial arts. Even this fact will not be available to you during your defense if you shoot me without other cause unless it is known to you before the fact.

Just because you don’t like the fact that there altercations between harsh words and the use of deadly force does not made the fact that they exist, and occur daily any less real.

SRYsandan

 

[Powderman]

The things you mention are part of how it's supposed to work. Now, here's a dose of reality.

You, as the person who claims that the homicide you committed is justified or excused, have the burden to prove the following:

1. That you were in danger from the person who attacked you;
2. That the person was capable of carrying out a attack upon your person that could result in your death;
3. That the person had the means to kill you, AND WAS IN A POSITION TO CARRY OUT THAT THREAT;
4. and that the person had manifested a specified intent to do so IMMEDIATELY.

So, here comes this guy. He looks at you with loathing and anger.

He starts walking in your direction. Hatred is seething from his person like a thick miasma of lethal intent. His intent is plain.

HE INTENDS TO HIT YOU!!!

Quickly, you reach under your coat to draw (insert music of choice) your ubertactical ColtGlockWesson in .95 Mankiller. As you present the weapon, demons dance around the cavernous hollowpoints in the chambers, giggling in glee at the thought of the impending carnage.

The man speeds up his pace. He raises a fist that looks to you like the hammer of Thor. You know that the time has come; talk is over.

Quickly, you center your sights, and press the trigger twice in rapid succession. The man grunts as two rounds take him center mass, and he staggers and falls to the ground. You keep the weapon trained on him, should he attampt to rise. But, a gurgling sound tells you that this confrontation is over.

Sirens sound in the distance. You stand confidently, knowing that the police will handle the situation appropriately. You have holstered your weapon, and stand there like the great citizen that you are.

Two patrol cars come up the street. They stop, both angled toward you, their lightbars flashing. You start to walk to them. But wait--what are they saying?

"LET ME SEE YOUR HANDS! STOP! PUT YOUR HANDS UP! RIGHT NOW!!"

You see that both officers have their weapons drawn. They're pointed AT YOU. Why? You were the threatened one!!

Quickly, you comply with the officer's instructions. You face about, drop to your knees, then prone. You lay there for a second--then, you feel a knee across your upper back and neck, and your arms being dragged behind you. You feel the cold kiss of steel as handcuffs are applied. As you glance upward, you stare into the chasm of the 12 gauge shotgun bore--pointed right at your head.

Your gun is taken, you are searched, and then you are dragged to your feet. The officer takes you back to her car, her partner following. After the shotgun is secured, the officer reads you the Miranda warning from a card. You agree to talk.

"So, did you shoot this guy?"

"Yes."

"Why?"

"I was in fear of my life."

"What did the guy do?"

"He raised his fist and walked toward me."

"OK. Where's his weapon?"

"He didn't have one."

A moment of silence ensues. Both officers look at you without speaking, then they glance at the dead man, who now has another group of officers standing near as a paramedic examines him.

"So, why did you shoot?"

"He was about to hit me."

The officer looks at you. She says, "But he didn't have a weapon!"

After another brief pause, she says, "Sir, you are under arrest for committing murder. Please step to the rear of my patrol unit."

If you drew and pointed your weapon at someone who was complying with no weapon visible or close at hand I suspect you would be running afoul of department procedures. If so the burden would be on you to demonstrate why that was necessary. If the suspect was a minority I suspect even more that you would be in for some serious questioning, possible disciplinary action.

If I rolled up to a scene where a person had been shot, the suspect was standing there and I did NOT put the person at gunpoint, I most assuredly WOULD be subject to disciplinary action. Race has nothing to do with it.

Sir, I must ask a question.

Of the people who have posted to this topic, I suspect that I am actually one of the LEAST qualified to expound on the subject. You see, I have only seven years in uniform.

There are people here who are retired cops; and other veterans who have been in the job a lot longer than I have.

There are others who make their living by instructing people in the methods of lawful self defense. They HAVE to be right in their teachings, or else liability would eat them alive. They MUST know the law in their jurisdictions.

And, there are people here who have actually had to make that choice--to take human life or die.

All of these people have given you advice. You still maintain that you have the right to take life under circumstances that will put you in prison, and your family in poverty for the rest of your life.

Why?

Are you seriously asking a question? Are you simply trolling?

Are you of legal age to carry firearms? Or are you a juvenile looking for information?

I've said it before, and I'll say it again. GO TALK TO AN ATTORNEY. BETTER YET, TALK TO A PROSECUTOR IN YOUR JURISDICTION.

 

[The Rabbi]

Of the people who have posted to this topic, I suspect that I am actually one of the LEAST qualified to expound on the subject.

Aha! I knew we would find at least one point to agree on!

Here is a thread covering basically the same issue:

http://www.thehighroad.org/showthread.php?t=105055

Go over there and tell all those folks how you're gonna roll in with blue lights flashing and kick butt and take names.

 

[Shootcraps]

You better go read that thread again. They talk mostly about defending yourself from a FIGHT with a FIGHT. NOT with a gun.

Like Powderman said, YOU are going to have to get on that stand and answer tough questions from the prosecuting attorney about why you shot an unarmed person. Those questions will not be nice and they won't be in your favor. It will not be easy. Just saying "I was in fear of bodily harm" won't cut it.

 

[taliv]

this is like, the worst thread evar


but, rabbi, if you're going to go that road, make sure you understand where the whole burden of proof applies.

laws are often written curiously, in that they say something is a crime, but something else is a defense against it. as an example, it could be a crime to carry a firearm, one defense could be that you are hunting during season, etc. and another could be that you have a valid carry permit and have it on your person.

in your case, it could be that the prosecution only has to prove you pulled the trigger and produce the body. and you will have to prove that you have a defense against murder, i.e. self-defense with a very narrow definition

 

[Shootcraps]

Yeah, can you imagine the questions:


(Prosecuting Attorney)Mr. Rabbi, did you shoot John Doe?

(Rabbi)Yes.

(PA)Did he have a gun?

(Rabbi)No.

(PA)Did he have a knife?

(Rabbi)No.

(PA)Did he have a club?

(Rabbi)No.

(PA)So you shot a man who had no weapon in his hands?

(Rabbi)Yes.

(PA's closing argument) Ladies and Gentlemen of the jury, Mr. Rabbi has admitted that he shot and killed John Doe even though Mr. Doe had no weapon with which to inflict this so-called bodily harm. And he didn't even try to run away to avoid a fight with Mr. Doe. He thought it would be much better to just shoot him in cold blood. The State asks that you find him guilty of aggravated murder.


The jury will have a real tough time with that one. They might even get out before lunch.

 

[Arc-Lite]

...seams like the question has been addressed, but the many answers are not in support of Rabbi's assumptions. seeing a weapon as the "great equalizer"... in itself shows "attitude" of question. Life is about many things, one ...is the exchange and outcome of ...your choices and the resulting consequences....another is to challenge your assumptions...or they will surely challenge you . ......Arc-Lite

 

[The Rabbi]

Shootcraps,
Since you like dialogue so much here is one for you.

You are in a dark parking lot. Some skell comes ambling over. He asks you for money. You refuse. He gets worked up, screaming, cussing, whole bit. He is within 8 feet of you, maybe closer. He goes back to swing at you and you whip out your handy pepper spray and give it to him. He howls and limps off into the night. You go home thinking how nice you have staved off the attack and didnt have to kill him.
Later that night Ofc. Powderman comes knocking on your door.
OP: Mr. SC?
SC: Yes.
OP: Were you at a parking lot earlier this evening?
SC: Yes.
OP: Did you have an encounter with Mr. BG?
SC: Yes, he attacked me and I defended myself.
OP: He claims you harassed him and then sprayed him with pepper spray.
SC: Yes, but he was going to swing at me.
OP: Do you have a CCW?
SC: Yes.
OP: Why didnt you produce the gun and shoot him?
SC: I wasnt in fear of death or bodily harm
OP: Then why did you spray him?
SC: I was in fear of bodily harm.

OP arrests you for assault and battery and doubtless a few other things and hauls you downtown. You make bail and get home, facing a grand jury and possible indictment. Next night, Mr. Process Server knocks on your door and hands you a summons in civil court because Mr. BG is suing you for $500k for your reckless behavior that resulted in injury and anguish.
In civil court the burden of proof is only preponderance of evidence (remember, OJ lost the civil suit). The criminal case is prima facie evidence and the jury awards Mr. BG the half million. You now have jail time and a judgement, not to mention attorney bills.
If you had simply shot him that in itself would be prima facie evidence of reasonable fear of death or bodily harm. Anyone on a jury would appreciate that being in that situation would induce fear in any reasonable person (maybe Mr. BG has a knife. How would you know?). The DA's office would probably decline to prosecute as the chances of conviction are nil.

 

[spacemanspiff]

actually the officer would probably ask you why you didnt try to escape the situation.

and if you are sitting in a dark parking lot, you should kick your own butt for doing such. not very tactical, unless you have a night vision headset so you can see anything that moves.

also, are you in your vehicle? if so, why cant you roll up your window and let the 'skell' (been watching nypd blue reruns lately?) hit that while you call 911 on your cell phone?

in fact, why didnt you call 911 immediately after the threat went away? you could press charges.

in the interest all invovled, including yourself, you are hereby notified that your CCW Badge is revoked. the food court also has been instructed to stop serving you nachos. and the hardware store wont sell you any more duct tape unless you sign a statement swearing you wont use it to affix trauma plates to your torso.

 

[carpettbaggerr]

There's a difference between bodily harm and grievous bodily harm. A world of difference. If you don't understand that, you'd better read the law. And, really, contact your local prosecutor's office. They'll explain the law for free.

Do it before you wind up in prison.

 

[buzz_knox]

You have just demonstrated why cops arent lawyers.
The burden of proof is on the state to show the criminal elements beyond a reasonable doubt. It is not on the defendent to show his innocence. Once the defendent raises the claim of self-defense it is the burden of the state to overcome that defense.

Self-defense is an affirmative defense. You have to establish the elements of the defense. If you fail to do so, the court can direct the jury to ignore your defense. So in a very real sense, you have to prove your innocence in a situation involving use of deadly force.

As for consulting with the prosecutor's office, I wouldn't expect much of a response there. They aren't inclined to give free advice as they don't want someone telling a judge "but your honor, the DA told me I could."

If you had simply shot him that in itself would be prima facie evidence of reasonable fear of death or bodily harm.

That's a joke, right? You're kidding, right? Shooting someone is not prima facie evidence of self-defense. It's evidence of the intentional or unintentional use of deadly force, period.

You are in desperate need of a sit down with an attorney. Print off this thread, identify your posts, and then let him or her set you straight.

 

[Powderman]

OP arrests you for assault and battery and doubtless a few other things and hauls you downtown. You make bail and get home, facing a grand jury and possible indictment.

WRONG.

WRONG, WRONG, DOUBLE WRONG.

OC Spray has been accepted nationwide as a viable and valuable tool when defending yourself against assault. There is not ONE officer in the ENTIRE United States that will arrest you for the use of pepper spray to ward off an attack of ANY type.

If you had done your homework, you would also see that OC spray AND Tasers are equivalent to going hands on in almost ANY situation, and indeed are the preferred method to prevent injury to arresting officers AND good guys/gals out of uniform.

Plus, NO license is needed to carry or use OC. Even States that heavily restrict the carrying of firearms allow OC.

I said it before, and I'll say it again, since the preponderance of the evidence points to it:

You are either a kid looking for advice, a teenager trying to start a ruckus, or a troll trying to stir the pot. Which one is it?

Can you even legally carry a firearm? All of the "facts" you have mentioned would have been answered by even a casual perusal of your State's law.

So, post if you would please, something about your background that causes you to be the expert on the deployment of weapons for self defense.

If you ARE sincere, this place is the finest in the world to gain valuable advice based on experience.

If not, then move on along.

Oh, one more thing...

You gave yourself away when you mentioned a grand jury and indictment. In all juridsictions that I have EVER heard of, the use of OC, even unlawfully, only constitutes misdemeanor assault. That's a criminal citation, which carries a little more weight than a TRAFFIC TICKET.

You've been outed.

 

[FORTRAN]

Be careful

You are correct that the Frazier case was between two gang members and the situation was different, but what I wanted you to see was how it is entirely possible to declare self defense and still end up with 2nd Degree Murder, because as stated in the document, "To establish second degree murder here, the State must have proven beyond a reasonable doubt that the defendant knowingly killed the victim" and if delaring self defense, "the decision concerning whether the defendant acted in self-defense is one to be made by the jury. See State v. Goode"

All I'm saying is that if you choose to run away or de-escalate the problem, you won't be at the mercy of a jury and staring down a second degree murder charge (Frazier got 22 years). And not to sound overly dramatic, but In prison, you won't have a gun to protect yourself. Staying safe and protecting your family is a lot more complicated than shooting an aggressor. Think about both outcomes, and you'll come to realize that shooting really is a last resort.

Stay safe.

FORTRAN

 

[Penforhire]

Rabbi, I think the situation is best separated into two components, legal and ethical.

You very well might be ethically justified in shooting your hypothetical attacker. I'm not standing on very high ground but it is possible. What I mean is, like many others here, I don't think of a fist fight as life-threatening and you will be hard pressed to find many who do. Can it be? Sure. And a strike from a soccer ball can kill you too. There's a difference between possibility and probability. I might shoot your prposed attacker too, but, um... I would not be proud of how well I defended myself.

Anyway, I see the legal component as completely separate. Our laws and common sense do not always align. I think an average jury would find you guilty of some form of over-reaction (manslaughter?). I take it as clear proof that few people here, on a pro-gun board, support your decision to shoot. You are welcome to continue arguing your merits but you can't say the gut-reactions of your fellow posters here supports it.

 

[Shootcraps]

If you had simply shot him that in itself would be prima facie evidence of reasonable fear of death or bodily harm.

Wrong. It's simply evidence that you shot him. You and your attorney are going to have to convince the jury that there was "reasonable fear of death or bodily harm". The DA is going to try and convince them otherwise. My money says he will succeed and you'll go to prison for aggravated murder.

(maybe Mr. BG has a knife. How would you know?).

If you don't see it, it ain't there.

The DA's office would probably decline to prosecute as the chances of conviction are nil.[/QUOTE}

The DA's office and all of his anti-gun friends are going to have the biggest party EVER after your conviction and celebrate how easy it wasy.


And now since you're proven to us that you're unworthy to carry a gun, we WON'T be bringing you cigarettes on visiting day.

 

[JerryM]

In any state where you shoot someone, it is going to be the shooter's burden of proof to prove that it was a justified shooting.

Jerry

 

[Kamicosmos]

*deletes what I had written*

Think I'll just go with: :banghead:

We have 4 pages of some of the best coverage and advice I have seen about CCW from a wide assortment of people, yet this guy is still saying 'I'm right, I got a licence to kill as long as I say it was in self-defense.'

Didn't Bernie Gehts (sp, the NY subway guy) say his killings were in self defense too? That Wisconsin 'hunter' is saying the same thing.

There's a good example...There he was, getting called names by 8 people. So he shot and killed them all. Obvious self defense...we should buy him a cake or something....

 

[insidious_calm]

The insanity in this thread.....

First, IANAL, nor do I play one on here. Second, what follows is my opinion based on real life facts. YMMV.



I guess I should say that by some of you guys' standards I should be in prison. I say that because I have more than once drawn a handgun in defense of myself or another. Once against a man with a knife in a bar, at which I was the bartender. Another time against an unarmed man whom I knew to be a wife beater. Police reports were filed in both cases. I still had the scumbag at gunpoint when the police arrived in the second case. I did not retreat in either case. I was not arrested or disarmed in either case. Fortunately I did not have to shoot in either case, but then again that distinction seems inconsequential here to some.

One thing that I am most certain of is that some of you have never been in a knock down drag out fight. I don't mean your run of the mill school yard roll in the dirt. I'm talking about a real life nose breaking, lip splitting, tooth losing, eye blacking, rib stomping fight. I know that because some of you honestly believe that an unarmed person does not equal deadly force. I hope that naivity never gets any of you hurt or worse. No longer are there "gentlemans rules" in a streetfight, if there ever were such considerations.

One thing that you should always remember is this; if you're carrying a concealed weapon there already is a gun in that fight. I have seen 15-16 year old punks knock out grown men twice their size with one punch. Now, maybe you're billy badass, and you're not troubled with such preponderences. Or maybe you're so lucky that you know you'll never ever be knocked out. Maybe you'll never get stomped and have a rib puncture your lung, maybe. Myself, I don't wear an 'S' on my chest. I have been knocked out before and recieved a broken nose or two and also recieved one stomping that resulted in three broken ribs. An unarmed man is a deadly threat based solely on his intentions to cause you bodily harm. I assume no obligation to go to fisticuffs with anyone.

Consider for a moment an off duty plain clothes police officer. Do you honestly believe he isn't going to draw his weapon if you assault him. Don't give me any nonsense about duty to arrest. Yeah he does have a duty, but the first thing on his mind is defending himself, not arresting you. As for this bravado about not being in a bad area at night etc. etc. well that's great but stuff happens. Ever been to a 24hr pharmacy to get your kids medicine in the middle of the night? Yeah, retreat is always the best option if it's available and PRUDENT, but failing that I reiterate "I assume no obligation to go to fisticuffs with anyone."

Some have said that all should be reading their various state statutes so they can see they will be going to prison if they draw on or shoot an unarmed person. So I did. It appears that in my state my position is well within law. I live in Kansas, the relevant statutes are as follows:

21-3211. Use of force in defense of a person. A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force.

21-3214. Use of force by an aggressor. The justification described in sections 21-3211, 21-3212, and 21-3213, is not available to a person who:

(1) Is attempting to commit, committing, or escaping from the commission of a forcible felony; or

(2) Initially provokes the use of force against himself or another, with intent to use such force as an excuse to inflict bodily harm upon the assailant; or

(3) Otherwise initially provokes the use of force against himself or another, unless:

(a) He has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.


21-3403. Voluntary manslaughter. Voluntary manslaughter is the intentional killing of a human being committed:

(a) Upon a sudden quarrel or in the heat of passion; or

(b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto.

Voluntary manslaughter is a severity level 3, person felony




Now I added some bolding for ease of vision, and once again, IANAL. However, I find no difference in the relevant statutes between force and deadly force. If one is justified so is the other.(Edit: to say that the law does not make a distinction between 'deadly force' and 'force'. There would still be a 'reasonableness' test) Also, there is no specified duty to retreat before resorting to deadly force UNLESS you instigated the argument in the first place.

Sorry for the length of this post but I simply can't believe some of what I'm reading. For people who supposedly espouse self defense some of you sure are against it . For informational purposes I have both TX and NH CHL's and Kansas is not a right to carry state. YMMV.


I.C.

 

[Kamicosmos]

:banghead:

 

[pax]

Y'know, I promised myself I wouldn't bother posting on this one again, but I just can't resist pointing out that we've had two separate ad hominems directed at people who don't agree with the original poster:

1) They're obviously all trailer trash who regularly brawl with each other and get into bar fights on weekends for fun.

AND

2) They're obviously all wimps and wussies who've never been in (or even seen a fight in their entire lives.

Amused.

pax

In all matters of opinion, our adversaries are insane. -- Oscar Wilde