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When Are You Justified in Using Deadly Force Against an Unarmed Assailant?

Discussion in 'Legal' started by MisterMike, Jun 10, 2009.

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  1. MisterMike

    MisterMike Member

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    It's always seemed to me that if you are confronted by an aggressor with a gun, knife or club, defending yourself with a gun is likely to be viewed as justifiable. On the other hand, while roughly one out of twenty homicides is caused by unarmed assailants, the use of deadly force against someone who's punching or kicking you may be viewed as excessive.

    I understand the law in an abstract sense--here, for instance, the use of deadly force is permitted if you are in imminent fear of death or great bodily harm, or if you are acting to prevent the commission of a "forcible felony." The difficulty for me lies in the question of how and at what point it is justifiable to use a gun against someone who's using his hands and feet to attack. In my mind, it's a difficult question--on one hand, most attacks of that sort simply result in scrapes and bruises. On the other hand, there is always the potential for serious injury or death, and it's damnably hard to predict when an attack will result in serious harm.

    How do you feel about this question? At what point would you feel it appropriate to use your gun to defend yourself against an unarmed assailant or assailants?
     
  2. Rellian

    Rellian Member

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    depends on ALOT of factors. It will be different for each person. I'm 6'2" and weigh close to 200lbs. A man coming at me swinging may not have the same threatening presence to me as to say a woman who is 5'3" and weighs 102lbs in a soaked wool sweater.
    Also number of assailants is a factor. The assailant's actions, words (or lack there of), attitude, volume etc; will have much to do with how high the treat level rises in my mind.
    How aggressive do they appear to be? Do I have an escape route? Are there others in my group that are smaller and weaker that cannot get away fast and if so how many (ie.... kids in tow)
    I could keep this up for another page or two if i really wanted to stretch it... .
    you get the idea... every situation is unique in this regard....
    No Formulas
     
  3. Buck Snort

    Buck Snort Member

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    The courts take a look at disparity of size, age etc. For example, I'm 5' 7", 170# and 66 years old. Just about ANY attack from a younger person would put me in fear of great bodily harm. However, its academic, I live in the PRC and getting a CCW is next to impossible in my county.
     
  4. CoRoMo

    CoRoMo Member

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    If you're asking the question in legal context (hence the forum), then you've already answered the question.

    The law will justify...
    If an unarmed attacker has crossed those lines with you, the legal system has little to blame you with.
     
  5. OurSafeHome.net

    OurSafeHome.net Member

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    First, know that volumes have been written on this subject and laws vary from place to place. With that in mind:

    Broadly speaking, the short answer is the "reasonable person" test: "Would a reasonable person be justifiably afraid of losing their life or sustaining grievous injury?" under the circumstance in question.

    Here comes the moral/spiritual (not legal) advice: Even though you may not have a "duty to retreat" under the law, your life will be better if you can find a way to retreat and avoid having to use lethal force against an unarmed attacker.

    (With ammo prices being what they are these days, this is a real money saver, too!)

    Now, a word from the shameless commerce division: We cover this topic extensively in our online self-defense and CCW class. Contact me for a Discount Code before you enroll.
     
  6. Rockwell1

    Rockwell1 member

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    If you have to ask, you're not.

    Seriously, if you really think somebody's going to die or be seriously injured if you don't shoot, shoot.
     
  7. Bigmike2

    Bigmike2 Member

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    There was a case in Dallas a few years back where a martial arts instructor attacked I believe his brother or brother in law. Anyway the man ran outside to his car with the attacker hitting him the whole way, and shot the attacker with a gun he had in his car. Because the attacker pursued the fleeing man the man was not charged. The whole thing came down to the fact that the man had tried to get away from the attacker and the unarmed attacker pursued him. So I think if you first try and back away and the attacker pursues then I would think that would at least demonstrate he was a danger to you and you might need to take appropriate measures to defend yourself. I mean how do you know when a well intended ass whipping will turn into a brutal killing?
     
  8. MisterMike

    MisterMike Member

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    True enough, but the difficulty always lies in actually applying the law to your situation.

    I agree . . . and luckily retreat is something that comes naturally to someone as cowardly as I am. :D

    It is always difficult to predict what a jury might later find "reasonable." I'm a former LEO and I've been a prosecutor for many years (though I've been prosecuting white collar crime, and not violent offenses, for some time). Those experiences have taught me (1) that your advice about retreat is wise, and (2) once a fight is imminent, the situation can turn deadly in a heartbeat.

    This second point is not necessarily something that every person understands. Indeed, it's not something the assailant even appreciates in many cases--there are innumerable instances where a shove or a less than heavy blow has resulted in a deadly fall. Which gets back to my second point, built on many years of experience.

    What I'm attempting to do in posting this question is to arrive at a reasoned and reasonable method to approach this question. My thoughts are this:

    -Whenever it's possible to do so safely, retreat is the way to go.

    -If retreat is not feasible, I'd consider the emotional state of the assailant, his size and apparent capacity to inflict harm, the setting (I once had a crazy guy stare me down and start doing kung fu moves when I was steps away from an electried third rail), whether he had accomplices, and my then-present ability to defend myself without weapons.

    -Having said all that, it seems preferable--indeed life-preserving--to at least consider the worst case scenario, in terms of what might befall you and your loved ones if you do not react with deadly force.

    Reciting the law is the easy part. Deciding how to apply it when some nitwit starts swinging at you is the difficult part.
     
  9. Deanimator

    Deanimator Member

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    1. Disparity of Force - Meaningful differences in age, sex, physical condition, numbers, etc. of the parties. Two similarly built 21 year old males: probably not justified. A 210lb. 18 year old male attacking a 110lb. 50 year old woman: probably justified. Right after CCW was made legal in Texas, a huge Samoan guy attacked a much smaller guy in his vehicle, after fleeing the scene of an automobile accident with the smaller guy. He started savagely beating the smaller man while he was trapped in his vehicle. The guy told him he'd shoot if he continued. He continued and was shot. No-bill.

    Recently on a newspaper blog, a person tried to argue me into believing that there should be no legal distinction between the attack of a 250lb. man on a 115lb. woman as opposed to mutual combat between 250lb. men. That person was of course an ignoramus.

    2. "Castle Doctrine" and similar legislation - In Ohio, f you forcibly enter my home, or try to carjack me, the presumption is that I was in reasonable fear of life and limb and was justified in shooting you. That presumption can be overcome, but I get the benefit of the doubt. Don't like it? Don't be a home invader or carjacker. They're hazardous occupations. Find something safer... like digging for hidden stockpiles of Japanese mustard gas in Manchuria.
     
  10. MisterMike

    MisterMike Member

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    That's an excellent way to summarize the principle. The only thing I think it misses is consideration of the setting (see my "third rail" anecdote): If I'm a 280-lb. body builder standing on the peak of Mount Everest with a 130-lb. pipsqueak who starts slapping me, do I have to rely on my greater strength to subdue him, or may I shoot him, believing that he may otherwise, at any moment, cause me to fall 29,029 feet to my demise?
     
  11. Bigmike2

    Bigmike2 Member

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    Reteat is more of a tactical move than one of fear. Space means time. Time to Think, Assess, Move and Act. People with fighting trainng know that a step back may be just what is needed to gain the upper hand in a fight.
    I believe that if you are going to carry a firearm that you need to do so responsibly. That means being aware of where you are and who is around you. Letting yourself get caught between a live rail and an attacker at a station is your fault! You turn what could be a simple walk away into a life and death decision.

    That comment about the mental state of the assailant reminds me of a joke about liberals I read about!! Ha Ha Things happen very fast. You need to be anticipating what might happen and make sure you can get out of it safely. Never let an potential attacker get withing arms reach of you before you either warn him or draw. That is just carelessness. The simple fact is that if you are in a situation where you believe someone is about to cause you bodily harm to the point that it could cost you or one of your loved one's thier life then you need to stop them by what ever means is at your disposal. You need to have played that seanario out in your mind and when it happens you'll know what to do. Everyone who picks up a firearm needs to do this. The goal should always be to protect your self and others. Sometimes the "other" is the wacko that is bothering you. You protect him by paying attention to where you are, flashing a smile, trying not escalating the situation and just walking away. Then if he pursues you need to shoot the guy dead and just hope that you got him before he got into the gene pool.
     
  12. Dr. Fresh

    Dr. Fresh Member

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    Also, keep in mind your weapon my be compromised in a hand-to-hand fight. That scares me more than getting hit.
     
  13. MisterMike

    MisterMike Member

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    Geez, now you've gone and hurt my feelings. I'll elaborate briefly, but this is more of a topic for Strategies and Tactics. This happened about 30 years ago. No concealed carry (for me) at that time. I was on a platform of an subway station in Boston--just my wife, me and a smallish guy who looked "normal," standing about 15 feet away. Without any apparent precipitating event, he gives me the evil eye and starts with his kata. I realize at that point that he isn't normal . . . he's nuts. Keeping an eye on him, I reposition my wife and me, so that he's now the one between me and the third rail. He stops his little act and goes back to just standing there. Train comes. We get on. End of story.

    It did make an impression on me, though--this happened in 1979 or 1980 and I still remember it vividly. An unarmed man. Acting like a nut. In a dangerous place. I've reconsidered my actions over the years and have come to believe I didn't make any mistakes. But, regardless of whether or not I did, the legal issue that I raised in my OP remains: Had you been in my shoes and had you been armed, at what point would you have been justified in shooting the guy?
     
  14. Bigmike2

    Bigmike2 Member

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    Sounds like you did the right thing. Why would you need to shoot him?
     
  15. Bigmike2

    Bigmike2 Member

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    Since this is all just for what ifs. Then I'll give you a sceanrio and you tell me what should have happened.

    two years ago I drove to a restarant in Houston by myself. It was late at night and I was just getting something to eat after day of meetings. The parking lot was located behind the bulding and was lit but not well lit. As I entered the parking lot I noticed that there seemed to be a street person wondering around between the cars. My first thougth was that he was just checking doors hoping to steal something to sell. I figured that my driving up would scare him off. It didn't. I drive a pickup and I usually back in. As I finished bacing into a spot the guy was now at my window. He started begging for some money. I rolled the glass down about a quarter of the way and told him that I didn't have any money for him. At that point his attitude changed. He looked strait at me and said. "I know you got money. You need to give me some of your money or your not going anywhere." It was at this point I noted that he had both hands in his pockets. I told him well yes I do have some money for him and if he would put out his hands I would give it to him.

    So at this point what did I do?

    Did I have the right to shoot him at that Point? Probably. He was big. Dirty. Scarey and I should have been in fear of my life.

    Did I shoot him? No. Why? Because I knew he couldn't have a gun. How? His pants were too thin and a gun would have been obvious. Besides he would have sold it by now. I knew if he had a knife he couldn't have hurt me because my window was not down far enough to allow him to stab me. So becuase I was in control of the situation I did not have to shoot him.

    What I did do was produce from my side a very loaded 45 kimber auto with a laser site which I promptly set right on his chest.

    I yelled at him to back up and get down on his stomach and interloch his hands behind the back of his head. Obviously he knew the routine and complied.

    I got out of my truck and proceded to walk around him keeping my site on his torso as I started to call police from my cell.

    Didn't have to. The police rolled up about that time. Seems some inside the
    restarant already had. As they pulled up I saw them, Planced my gun on the ground. got down on my knees and interlocked my hands behind my head.

    They come up stood me up, patted me down got my licence and CHL from me and began asking me what happened.

    Seems the guy had been there a couple of times and robbed people getting out of their cars. As I said He was a very big guy.

    So That is real world. That is how it happens. When you least expect it, expect it. I have played that through my mind a dozen times and each time I play it a little differnent. But I can tell you this. Had that guy started towards that window rather than back off and get down on the ground. He would have been dead.
     
  16. ar10

    ar10 Member

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    It's interesting that a broken nose or knocked out tooth are both considered aggravated assaults, along with getting hit with a beer bottle of course. Seems to me retreating is pretty cost effective. However, if the victim were to fight back wouldn't both parties be the victim. (I guess it depends)
     
  17. Rockwell1

    Rockwell1 member

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    Gawd I'd love to have seen the look on his face
     
  18. Jim K

    Jim K Member

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    There is no obligation in the law to allow oneself to be beaten into a bloody pulp just because the assailant is "unarmed." That would be even more true if the assailant were also an intruder in your own home.

    But there may be questionable justification if a 300 pound NFL lineman is attacked by an 80 pound 14 year old girl. I can't conceive of any court ruling that he would be justified in shooting her. The reverse would be a very different story.

    Jim
     
  19. Hungry Seagull

    Hungry Seagull member

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    An anklebiter does not get shot. Only kicked.

    Now if said person is ... some kind of 300+ pound muscle man out of heavy weapons company nutz recently deployed to zombie wars and has mental issues and advances on me with fists clenched and displaying unmistakeable intent to pound me into death? Hmm.. gotta think about that one. /sarcasm.

    Now if said person is Dennis the Menace bothering me because he has nothing but time and boredom on his hands.... well I cannot go shoot the tyke.

    I have had my fair share of... nut cases present to me a situation that is bizarre but not enough to shoot on.

    I had one stick his finger into my dinnerplate (Deep into the fries and gravy) and asked me if I was done with my meal. He was filthy and dirty.

    The whole place went quiet and I sit there and processed mentally the present problem. My hand reached for the back of my belt and a big driver grabbed it and told me nuh, uh... not worth it for this little S*** and 5 dollars of food.

    I was not in a good state of mind and was physically seperated from the little punk. Good thing too. They arrested and took away that kid too. Otherwise it would have been me. The Manager replaced my meal with a much better fare as compenstation on the house. Much appreciated.

    I dont shoot unarmed people. Not unless certain things are met and satisfied.... the previous poster's example of third wire on the subway platform is one good example.
     
  20. carebear

    carebear Member

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    Remember also that "reasonable" is in your eyes and you are allowed to explain your reasoning to the jury who then considers if they feel it was reasonable, not in their eyes, but in the eyes of a theoretical person, knowing what you know, in your position.

    If you happen to know that, for example, a solid blow to the temple can cause blindness in a statistically significant number of cases, that blows to the chest can cause heart attacks, again in a statistically significant number of cases, or similar facts and you present that information as part of your state of mind while facing the attack the jury is required to take that into account.

    Informing the jury of the realities of "unarmed" violence can do much to dispel the "you were afraid of a punch?" attitude of less-knowledgeable individuals.
     
  21. alsaqr

    alsaqr Member

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    The 17 year kid was a big guy and unarmed. That dumb kid had everything to look forward to. He was a senior at Cache High School and was training to ge a firefighter at VoTech. Who knows why he did a break-in.

    Comanche county, OK prosecutor Robert Schulte declined to take this case to a grand jury.


    http://concealed.wordpress.com/2007/10/28/stand-your-ground-law-in-oklahoma-upheld/

     
  22. charliewood

    charliewood Member

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    when

    I've worried about this for years. I've decided that i will not get drawn into a fight. the last fight I allowed myself to get in, I was stabbed in the neck with a neck from a broken beer bottle,just 5mm from my jugular .
    What has always confounded me are the facts that HE wanted to fight SO BAD and he outweighed me by about 100 lbs and towered over me at 6'3 vs my 5'10.
    I wouldn't have though a person with an obvious advantage ,that WANTED to fight , would have stabbed me. I've decided i will not fight anyone .A simple fight could end up with him bumping his head and dying or me getting killed either by accident or design. I will not trust someone to only give me an a@# whoppin and not badly hurt me. Also, I decided that i can't let someone overpower me while carrying. they could get your gun and kill you with it.
    I bet a jury would /could believe you were threatening with your gun and bad guy was defending himself when he grabbed it from you and shot you.
    As for me, I don't want any trouble ,they can win the argument or cuss all they want...if they move on me, i will draw and warn. if they continue,they won't for long.I know i will be in a world of trouble if it comes to that, but I'm not trusting anyone to "play fair" again. NEVER WIN AN ARGUMENT,NEVER LOOSE A FIGHT
     
    Last edited: Jun 10, 2009
  23. fastbolt

    fastbolt Member

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    Where do you live? What are the relevant laws governing the lawful use of deadly force where you live?

    In California state the Office of the Attorney General has a .pdf file titled "California Firearms Laws Summary Booklet" available for viewing and download on the Bureau of Firearms part of the state website.

    Website page: http://caag.state.ca.us/firearms/

    Booklet page: http://ag.ca.gov/firearms/forms/pdf/Cfl2007.pdf

    The introduction reads:
    "INTRODUCTION
    This pamphlet contains a general summary of California laws that govern common possession and use of firearms by persons other than law enforcement officers, firearms dealers, or members of the armed forces. It is not designed to provide individual guidance for specific situations, nor does it attempt to summarize federal law. The legality of any specific act of possession or use will ultimately be determined by applicable federal and state statutory and case law. For more information on specific state statutes, please refer to the full text of the California Penal Code sections referenced herein, available via the Internet at: http://www.leginfo.ca.gov/. Persons having specific questions are encouraged to seek legal advice from an attorney, or consult their local law enforcement agency or law library. The California Department of Justice and all other public entities are immune from any liability arising from the drafting, publication, or dissemination of this pamphlet, or any reliance upon it. (Penal Code § 12080.)"


    Section 3 is "THE USE OF FIREARMS IN DEFENSE OF LIFE AND PROPERTY".
    It starts with this statement:
    "The question of whether use of a firearm is justified for self-defense cannot be reduced to a simple list of factors. This section is based on the instructions generally given to the jury in a criminal case where self-defense is claimed and illustrates the general rules regarding use of firearms in selfdefense."

    It's only about a page and half long. It makes for interesting reading. Here's something contained within it ...

    "Self-Defense Against Assault
    It is lawful for a person being assaulted to defend himself or herself from attack if he or she has reasonable grounds for believing, and does in fact believe, that he or she will suffer bodily injury. In doing so, he or she may use such force, up to deadly force, as a reasonable person in the same or similar circumstances would believe necessary to prevent great bodily injury or death. An assault with fists does not justify use of a deadly weapon in self-defense unless the person being assaulted believes, and a reasonable person in the same or similar circumstances would also believe, that the assault is likely to inflict great bodily injury.

    It is lawful for a person who has grounds for believing, and does in fact believe, that great bodily injury is about to be inflicted upon another to protect the victim from attack. In so doing, the person may use such force as reasonably necessary to prevent the injury. Deadly force is only considered reasonable to prevent great bodily injury or death.

    NOTE: The use of excessive force to counter an assault may result in civil or criminal penalties."


    Does your state offer anything similar in the way of generalized information regarding the relevant laws of your state?

    LE can receive a lot of training in how to interpret statutory law and case law when it comes to investigating suspected violations of law, including ongoing in-service training to help them keep current with any statutory changes or new case law decisions affecting how they perform their enforcement responsibilities. How much of the general public may make the effort to stay as well informed is anybody's guess.

    A career spent in LE work has often revealed that a lot of folks have a lot of different interpretations of what they think the law means ...

    It's arguably a better idea to become acquainted with these things before finding out the hard way that everything you think you know is either wrong or doesn't apply how you think it does (or should) ... and not have to find this out during a criminal and/or civil court proceeding.

    I don't practice law. I used to enforce it as a career in ONE state. That certainly didn't make me anything even remotely approaching being any sort of an 'expert' by any stretch of the imagination. Not even close.

    I'd think questions of this sort might be better answered by sources other than public forums on the internet ... but that's just me.
     
    Last edited: Jun 10, 2009
  24. scottfrmga

    scottfrmga Member

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    Read the book Gravest Extreme by Massad Ayoob it is a very good read on the subject
     
  25. OurSafeHome.net

    OurSafeHome.net Member

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    Words to live by.

    Well said, sir.
     
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