When shown a weapon

[braceyourself07]

http://www.thesunnews.com/2010/12/26/1888238/sc-man-killed-in-argument-with.html#storylink=mirelated

http://www.thesunnews.com/2010/12/27/1890205/sc-tow-truck-operator-charged.html#storylink=mirelated

The first article illustrates an unfortunate series of events where a tow truck operator in South Carolina is confronted by a disgruntled individual who doesn't want his minivan booted. The individual reveals his IWB weapon allegedly in a threatening manner prompting the tow truck operator to make the decision to use his weapon. The second article reports that the sheriff's office has charged him with manslaughter.

The two news articles are not very detailed and of course much of what happened--particularly since there is only one tale to tell--is left to the imagination. However I use this to stem the topic: at what point do you shoot if someone shows you their weapon in a threatening manner? Would you have done the same?

There have been at least one recent news report in my area (Myrtle Beach, SC) where a bad guy robbed someone by merely opening his jacket, revealing a handgun tucked in his waistband, and said "Give me your money." In SC, there is castle doctrine and no duty to retreat (although it's often advised to de-escalate if you can, of course).

Would this scenario be different if it were on your property as opposed to a public area? I think the story further illustrates the point that if you shoot, prepare yourself for a world of legal hurdles... even in a gun/CCW friendly state (mostly) such as SC.

Thanks in advance for your thoughts.

Mike

 

[The Bushmaster]

The tow truck operator should have just quietly left the scene and notified the police and his boss of the situation. It is against the law in most [if not all] states to flash or flurish your weapon. Especially in a threatening manor.

 

[Demitrios]

Olivera was shot, in opinion because Oates was already in an elevated state of alertness when Olivera showed his pistol, which his own brother attested to him doing. I'm sorry but if someone trys to end an argument by showing that he has a weapon then he's established threat of force and is essentially saying I'm prepared to use it. Oates probably did a number of things wrong in this situation but ultimately in my opinion acted on self-defense.

 

[Corporal K]

This is one of those grey-area situations that permit holders may come across at some point. While it is illegal to brandish, the tow-truck driver will have to convince a jury (assuming there is no plea) that he reasonably believed that he was in danger of serious bodily injury or death.

A couple of things - tow-truck drivers are not held in the highest regard by most of the public and since the gun wasn't pointed a him, he could have backed off and called the cops. Based on these sketchy details, I say he's in a world of trouble.

On your own property, it's a whole different situation, but could still have a bad outcome with the wrong DA/jury.

 

[rocky1]

More here...

http://www.wistv.com/Global/story.asp?S=13744270

That one says Olivera's brother was a witness and that Olivera didn't pull his gun, in which case the tow truck driver, Oates is likely in deep <deleted>.

My opinion...

1.) A damm parking ticket ain't worth dieing over! On either end of that picture!! And,
2.) I'm guessing that neither of these guys had a permit, given their actions in this matter.

Either of these two could have called the police to resolve the issue here; I'm guessing that the tow truck driver was probably right in booting the car, and the owner didn't want to call the cops.

Be interesting to see if the deceased still had his gun in his waist band when it all comes out.

Tough call on this one as information is limited... Tow truck driver is outnumbered if both brothers were present, deceased shows him a gun, more than likely threatened him as well, he may be justified in fearing for his life and thus found innocent and released.

Link above says the deceased man's brother is suggesting that the deceased never pulled his gun, simply showed it to the tow truck driver, in which case the tow truck driver is probably going to jail for a long time. That doesn't constitute a threat worthy of shooting someone; just because they have a weapon on their person, and have threatened to use it, doesn't give you the right to shoot first. If they point that weapon at you and threaten you, then you "may" have sufficient cause to blow them away. If they open fire on you, then you definitely have a justifiable shooting scenario.

 

[Kleanbore]

Posted by rocky1: Link above says the deceased man's brother is suggesting that the deceased never pulled his gun, simply showed it to the tow truck driver, in which case the tow truck driver is probably going to jail for a long time.

That remains to be seen.

That doesn't constitute a threat worthy of shooting someone; just because they have a weapon on their person, and have threatened to use it, doesn't give you the right to shoot first.

If a person shows that he is armed, it is clear that he or she has the ability and the opportunity to cause death or serious bodily harm. Is the other person in jeopardy? If there has been a threat to use the gun, it would certainly seem so. Of course, there is also the question of who instigated the dispute and how...

However, in the case at hand, one would conclude from the reports either that the charging authorities in Bluffton, SC either do not believe that there is credible evidence that a threat had been made, or that they believe that the tow truck driver had an alternative means of avoiding injury, or that they have concluded based on the evidence that the tow truck driver was the initial aggressor. Others will decide those things based on the evidence and testimony presented.

If they point that weapon at you and threaten you, then you "may" have sufficient cause to blow them away. If they open fire on you, then you definitely have a justifiable shooting scenario.

Interesting point of view, but no, one need not wait for a gun to be pointed at him to be justified in the use of deadly force. The ol' "I saw it, Marshal, Ringo drew first, Little Joe shot him in self defense" is the stuff of dramatic fiction.

Laws vary among states, but these are both very good reads for anyone wanting some background on the justifiable use of deadly force:

http://www.teddytactical.com/archive/MonthlyStudy/2006/02_StudyDay.htm​

http://www.useofforce.us/​

How this incident will ultimately play out cannot be reliably predicted on the basis of news articles, but his unfortunate incident serves as a very pointed reminder of at least two things: (1) a shooter's belief that he is justified in the use of deadly force may not be shared by others, and (2) the best gunfight is the one that never occurs.

 

[Onward Allusion]

Two different scenarios. In the latter example, the BG is definitely out to do harm by showing the firearm.

In the first scenario, the "BG" wasn't the instigator. Yes, I know he flashed/brandished but while trying to keep his property. Was the vehicle's owner right? Absolutely not. However, the tow truck operator should have backed off and called the cops w/o drawing. If the vehicle's owner takes gun out or puts his hand on the gun, then all bets are off.

 

[sansone]

truck driver should have walked away.. local deputy would have arrested the car owner for brandishing. There was no fear for his life scenario IMO.. sad story with many lives ruined

 

[Yo Mama]

Me: "Hey man, no problem, not towing you today, take care, Merry Christmas."

IMO, no way could he justify shooting. He will pay dearly for this, and I'm comfortable with court on this one as it's debatable who was in the wrong.

Also, to me in the tow truck dude should be used to people being angry and aggressive.

 

[Kleanbore]

Posted by Onward Allusion: ... the "BG" wasn't the instigator.

The charging authorities bellieve that the tow truck driver is the "BG". They may believe that he was the one responsible for escalating the level of violence.

Yes, I know he flashed/brandished but while trying to keep his property. Was the vehicle's owner right? Absolutely not.

Threatening to use deadly force to protect property is unlawful almost everywhere, and in those other jurisdictions, only under limited circumstances.

However, the tow truck operator should have backed off and called the cops w/o drawing. If the vehicle's owner takes gun out, then all bets are off.

We do not know what the tow truck operator did that led to his being charged, but it would be completely unreasonable to believe that deadly force is never justified until an assailant has drawn his gun. Very few would ever survive to claim self defense.

See this from a paper prepared for attorneys who defend self defense cases:

Drawing and firing a handgun takes time. A client who waits to see whether the aggressor (who is making a sudden movement) is actually drawing a gun will likely be shot before the client can react. A client who waits until a charging aggressor is within 20 feet of her to draw a gun is likely to be tackled before she can fire. Moreover, a client who pauses between each shot — to see if the aggressor is surrendering, falling down, or trying to turn and flee — risks being killed during those pauses by an aggressor who has not yet given up.

It is much more likely that the charging authorities here do not believe that the evidence presented to them so far indicated that the use of deadly force was necessary, or that it does indicate that the tow truck driver was the initial instigator. We do not have the facts to reach any knd of conclusion on that, but that doesn't matter. Unless the tow truck driver elects to not contest the charges, others will make that judgment.

http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/f587d7d10c34fff2852572b90069bc3c?OpenDocument&Click=​

"Was the vehicle's owner right?" None of us were there, and we cannot really judge whether he was legally justified, but from a tactical point of view he was not right. He would likely be alive today, but for his having shown his gun.

 

[Mainsail]

It will come down to the 'reasonable man' doctrine; would a reasonable person have felt, under those circumstances, that their life was in danger? I don't think, for me personally, that I would have felt I was in danger of being killed or maimed by the mere sight of his concealed firearm. If there was hostility, such as yelling and cursing, I might lean more in that direction. BUT- if I felt I could diffuse the situation in some way, like running away, I would probably do that before I escalated, 'stand your ground' laws notwithstanding.

 

[cassandrasdaddy]

one problem some folks have with a gun "when you have a hammer everything looks like a nail."
a lot may depend on if the dead guy was really parked illegally. around here drivers get paid a piece of the action and it makes em a lil aggresive about towing. especially if there biz is slow or rent is due.
recently va passed laws to rein them in.
me? i'd have walked away if i had been either one of them and i suspect or would at least hope that the driver would do it differently if he had a mulligan

 

[Kleanbore]

Posted by Mainsail: It will come down to the 'reasonable man' doctrine; would a reasonable person have felt, under those circumstances, that their life was in danger?

It may come down to that. Usually, when someone displays a weapon during an argument, one would expect the other person to have a basis for a reasonable belief that he is in imminent danger. Will the fact that the victim's wife and children were present enter into it? Who knows?

The nacdl.org link that I posted above states ...

it is not a self defense case if ....the client continued to use force after the aggressor fell unconscious, surrendered, or began to flee. Self-defense has to cover every wound inflicted on the deceased.

Here's more on the case at hand:

....Oates allegedly shot Olivera six times, including four in the back.

http://www.thecoastalsource.com/news/local/story/DEVELOPING-No-bail-for-Preston-Oates/Cv0pHm3Xlk-8iXCmMjgWAw.cspx

Shots in the back are not necessarily incriminating, BUT:

This is a very troubling fact for many juries. The medical examiner may find that the client has shot (or stabbed) the aggressor in the side or back, leading to an argument that the client shot the aggressor while he or she was trying to flee. A moderately healthy person can turn his or her torso 180º in .53 seconds and can turn his or her entire body 180º in .667 seconds.12 This is very close to the amount of time it takes a trained police officer to fire a handgun. Thus, it is possible that at the moment the client began to fire at the aggressor, the aggressor was facing him. By the time the client completed firing the handgun, the aggressor had turned around, resulting in a shot in the back.

So, it will come down to the reasonable person test, and to the totality of the evidence, including witness testimony and forensic evidence.

I do not find the fact that the tow truck operator drew his gun when the victim displayed a weapon during an argument all that troubling, and depending upon how things unfolded from that point, it is conceivable that a reaonable person would have fired. Six times, including four in the back? Well, we'll see.

The shooter may or may not have committed crimes here; regardless, what happened is most unfortunate for everyone, including gun owners in general.

The singular lesson to be learned from this, I think, is that before anyone ever draws a gun, or even displays one in a tense situation, he or she should know in advance the answers to two questions:

1. Why am I doing this?
2. What do I intend to do with this thing?

Can't say for sure, but I doubt that the victim knew those answers.

 

[braceyourself07]

Good thoughts. I agree with all that was said--it's difficult to say how the trial will go since it depends on a lot of things (evidence, testimony, etc...). However, I can sympathize with the guy because he could have really been threatened and decided his only course of action was to fire. I have a friend who is in a family-owned used car business and they repo their own cars when dealer financing goes south. I can't imagine the stuff they have to put up with.

My concerns were mainly focused on what would I have done in this/similar type of situation. If I were the tow truck operator, I would have hopped back in the truck and let things be and then report it to the police. As was said, attaching a boot on a minivan is NOT worth it. But it all depends on what actually happened and if the guy really felt threatened and really was actually threatened (of course most of the interpretation of that is on the receiving end). With regards to being stopped in a parking lot with a BG showing a gun, and saying "Gimmie your cash..." If I have the opportunity, I would shoot--since the perceived conclusion to that command is: "...or I'll kill you".

Thanks, Mainsail, for distilling down the entire thought. In any situation, it boils down to the context as evaluated by a "reasonable and prudent man". The websites that Kleanbore posted are great. The one at teddytactical says it all when both objective and subjective criteria need to be met in order to be a justified shooting, "a Practitioner can not rely on a checklist to justify the use of force." -- You can't just think "he has a gun" and then draw and fire. There is a multitude of things happening simultaneously that must be judged before one can draw and fire.

...And even if you are completely within your right to shoot. Be prepared for a world of legal hurt.


Mike

 

[FIVETWOSEVEN]

Just because the gun is holstered doesn't mean its not a threat.
http://www.youtube.com/watch?v=jmKR6evZRQQ

 

[clutch]

Assuming the story is true, the tow truck operator was weapons free. The guy with the car crossed a line one should not cross.

The tow truck driver might have decided to walk away and the guy flashing the gun might have decided he was toast and dead men tell no stories a few seconds later.

Clutch

 

[Harley Quinn]

Some states of this Union, a holstered firearm/open carry, is very common... If it's the CCW carrying person who shows it to you, that is threatening IMHO...

Bad deal all around...

Why Brady bunch, want our firearms

 

[Bonesinium]

Without all the details, this could end up being a justified shooting if the man showed him his firearm, the tow truck driver then drew his firearm as he felt threatened, then the car owner reached for his weapon to draw and shoot it, and was then shot. Crappy situation, poor decisions on both mens part, but not necessarily ones where the tow truck driver should end up in jail. It sucks that one guy is dead, and one guy may go to jail, when I'm sure neither man had any intentions that day of doing anything of a criminal nature.

 

[JoeSlomo]

Hmmm...

This situation wouldn't meet the "Slomo engagement criteria" for use of deadly force based solely on the information provided.

1. Ability to cause great bodily harm / death?
- Yes. (display of firearm)
- Conclusion: Condition met.

2. Intent to cause great bodily harm / death?
- Uncertain
A. Was the display of the firearm used in conjunction with a verbal threat of violence?
B. Was the display of the firearm used in conjunction with a violent physical action?
C. Was the display of the firearm used as merely a bluff?
- Conclusion: Condition unmet.

3. Immediate use of deadly force needed to stop the threat NOW?
- No. (Firearm still holstered)
- Can I talk the situation down? (Possible)
- Can I move to a position of safety / advantage? (Possible)
- Can I prep / draw my arm without needing to fire? (Possible)
- Conclusion: Condition unmet.

IMO, the shooter still had options before resorting to deadly force. While the individual clearly showed the ability to cause great bodily harm or death, I believe that both intent, and the immediate need to use deadly force are not as clear, and could be argued against the shooter in a court of law.

 

[cassandrasdaddy]

other advice to the shooter? do not grin like its a prom pic when you are booked for this kinda crime. its gonna bite him in the butt already has with me

 

[KodiakBeer]

Obviously, they were both armed. The tow truck driver may well have been the first one to draw attention to his weapon and thus escalate the situation.

 

[cassandrasdaddy]

http://www.thecoastalsource.com/mos...Driver-Speaks-Out/hcwPeZC1q0y0t9WBNEPlyQ.cspx


shot in the head is bad if i can be shown it was while he was down

and this

He was walking to the police car, and he saw us, and he smiled like he did something great. He just killed an innocent man, a father. He said ha ha laughing and said Feliz Navidad, Feliz Navidad, like that was a present," said Diyhan. "He told me he was going to burn in Hell and he was happy with that," added Diyhan.
makes him a poor poster child

the stuff about others with "experiences" with the shooter does not bode well

 

[skifast]

I would have drawn my weapon and would have only shot if the deceased started to draw. I would have backed away with my gun drawn and left the scene and called the police.

Legal or not, I have a moral problem with shooting a man because he showed me a gun in his waistband. As soon as his hands move toward the gun, the moral problem ceases to exist.

 

[cassandrasdaddy]

real bad

http://www.thecoastalsource.com/mos...on-shooting-death/BYY85RO4TkKWVs7Wnt6AEQ.cspx

"My brother walked toward me trusting everything was okay; this guy shot my brother in the back," Nelson Olivera said. "And when my brother fell down, he came [over] to my brother and shot him in the head."

Oates' MySpace page lists him as the founding owner of Pro Tow, a towing company contracted for the Edgefield neighborhood where the shooting happened.

Oates has a lengthy record including allegations of assault, impersonating a police officer, and operating a business without a liquor license. However, he's never been convicted of a crime.


Meanwhile, commenters on the web site of The Coastal Source's news partner, Bluffton Today, alleged race played a role in the incident.

On Oates' MySpace page, pictures posted by user ProTow834 displaying anti-Hispanic remarks posted on a sign for Pittsburgh, Pa. restaurant Casa D'Ice.

 

[hapidogbreath]

The ONLY TIME a weapon ( FIREARM ) should be used is when LIFE is in immediate danger or the life of someone else (this is a gray area which training helps with as all is not what it appears to be ). This being said IMHO the person you are shooting ( for a reason stated above ) should not know the gun is out until he is hit. You can always run and not be a coward. There is no down over when you shoot someone..................