Friend gets sucker punched by unknown, can we draw weapon?

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Study on these parts of Sebastian's post (and I thank him for it):

s 776.012 Fla. Stat.: Use of force in defense of person.—(Snip)However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony;"

Then:

"s 776.08 Fla. Stat.: Forcible felony.—“Forcible felony” means...aggravated assault; aggravated battery..."

Okay? Enough of this Philadelphia Lawyer's picking fly-poop out of pepper. From what I've read in articles from Florida newspapers and some other sources, folks who follow the above pattern as described in the law go through the usual post-event hassle but don't normally face criminal charges.

In the FWIW department, that also holds true for Georgia and Texas, as well. Maybe other places, but I have much less info about those.
 
My first thought is that I teach concealed carry in Minnesota, and this is a common complaint about our class- that students are left in doubt as to when, exactly, they would be legally justified in drawing their firearms.

Unfortunately, this is largely a matter of case law and individual circumstances, and as such, there is no good way to answer the question. The only real answer is... it depends. It depends on relevant case law, the circumstances of the threat/use of force, the jury, etc.

What I usually tell students is that if a situation is bad enough that it's more important to you to stop the situation from continuing than it is to consider any future consequences, then it's probably bad enough to justify the threat/use of lethal force. And even then... only probably.

The second thought is that a ton of people have a great deal of confusion about the difference between the THREAT of deadly force and the USE of deadly force.

IANAL, but in my state you can use the threat of deadly force to defend yourself from a personal assault, but you may not be justified in the actual USE of deadly force at the instant you decide to THREATEN deadly force.

The significance of this is that when you are assaulted, you are not obligated to leave your firearm in the holster until you're 100% sure you're going to die.

More importantly, you are not obligated to FIRE your firearm if you draw it.
 
Posted by Madcap_Magician: ...in my state [(Minnesota)]you can use the threat of deadly force to defend yourself from a personal assault, but you may not be justified in the actual USE of deadly force at the instant you decide to THREATEN deadly force.
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Thank you for that. That is also true in Texas. There is a more limited provision in the same vein in a relatively new Arizona law.

One could debate the pros and cons of that--in fact, the Arizona law, which provides for the defensive display of a firearm under certain circumstances when deadly force per se is not justified, was vetoed the first time through. I like the idea, but it is important for our members in other states to know that most states do not have that provision.

The significance of this is that when you are assaulted, you are not obligated to leave your firearm in the holster until you're 100% sure you're going to die.
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... that is, in the holster until deadly force is justified, for whatever lawful reason; e.g., prevent the imminent commission of a forcible felony, in many states.

More importantly, you are not obligated to FIRE your firearm if you draw it.
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That is true everywhere.
 
Art said:
Study on these parts of Sebastian's post (and I thank him for it):

s 776.012 Fla. Stat.: Use of force in defense of person.—(Snip)However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony;"

Then:

"s 776.08 Fla. Stat.: Forcible felony.—“Forcible felony” means...aggravated assault; aggravated battery..."
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As I said earlier the law is far from the only important aspect. Clear violation of the law is likely to result in successful prosecution if you claim self defense (an admission of guilt, making it that much easier to prosecute if the legal requirements were not met.)
But completely following the law only means you might not be found criminally guilty against an unarmed man in self defense.

The jury gets a lot of discretion, and much of society views a simple unarmed attack as no more harmful than two boys fighting in the school yard.
It may not be true, but it is a fairly common perception.

In reality the truth is that once you are unconscious, you lose your say in events after that point. Whether they choose to stop, stomp or kick you to death (and a head over concrete cannot take much), or as is common in thug robberies pat you down or go through your pockets at which point they would be likely to find your firearm...you have no say.
Your options and ability to exercise them may end at any moment from any single blow unexpectedly. But you don't know when or if that will happen, and there may be nothing in between the initial attack and that point that would satisfy a jury that lethal force is necessary.
That means any lethal force against an unarmed person, especially by a healthy young male, will have a lot of jury discretion to determine whether the actions were those of a "reasonable" person.
That is the gist of it, the jury gets to determine if you acting in accordance with "He or she reasonably believes". If your belief is found unreasonable, because in some jury members' eyes it may not have been necessary, you lose your claim of self defense.

So all sorts of random and seemingly unrelated things can become important in their discretion that may not factor in if they were armed and attacking you. Things far outside the scope of what the simple text of the law says. I gave some examples of such things in my prior post, which can change the determination of guilt in the jury members' minds. Your age, your health, standing in the community, character, any past problems, were you greatly outnumbered, was the attack from people you knew or not (motive is important in deciding if it was murder), did you engage in a verbal argument before the attack or exchange other hostile words, etc etc
The list is endless when the self defense is not black and white and a jury gets to decide if your lethal armed force was "reasonable" against an unarmed threat.


Now what Art as a wise old man being attacked by some young punks could get away, and the level of sympathy they would get from a jury could be completely different than what a young 20 something whipper snapper could get away with in front of the same jury. :neener:
The law is as a result not a level playing field, and what works for one may not work for another.
So the correct answer is always "depends".
 
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JDMorris said:
If the person is in similar size to you I think the first move should be a punch...
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Want to hear a really sad part about that though?
You may be considered a mutual combatant exchanging blows, grappling, and otherwise in a fight.
If determined to be a mutual combatant it then turns future escalation of force into an illegal act.
It would be another one of those news stories where a bad guy pulled a knife, gun, etc during a fight on the other guy. Only you would be that bad guy.
It is quite likely you or who you are with will have very different versions of events from them and who they are with.
It is not even as important as who threw the first blow, if it is considered mutual combat then the legal defense of "self defense" may cease to be valid.

If prior words were said, or someone challenged someone or said words likely to incite a hostile response before turning and walking away, then the resulting melee could be considered mutual combat.
What actually happened may also not be entirely clear to the jury, and so just because you know you were legally justified does not mean they will not buy into or partially believe a conflicting account from the attacker or their buddies.

Even if it works and there is no escalation or need for a gun or additional force, it can result in charges against both involved in the fight when police arrive. Letting the court and conflicting stories determine who or if both sides involved are found guilty of the charges for fighting in court.
 
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It really depends. I don't know why some people get frustrated at the lack of a clear-cut answer, since there are rarely clear-cut situations in real life.

To be honest, I can't imagine this scenario actually happening. Maybe a gang of rowdy youths might decide to start randomly wailing on you or your friend. I have heard of that happening, with sometimes death being the result. In that case, yes, I would draw, but may or may not shoot. I am outnumbered, and who knows if someone has a small knife on them. If I had OC spray I'd start dousing immediately, with no warning.
 
sohcgt2 said:
It's legal to meet force with force, it is not legal to escalate force.
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I don't think that'll wash. If I'm assaulted by a larger man or men then drawing my weapon to defend myself most certainly constitutes an escalation of force, albeit a necessary one.
 
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I am not a lawyer, take my $.02 for what it's worth:

In CT, "disparity of force" would come into play. If the fight is clearly unbalanced against you, like more than one attacker working together, or a man on a woman with a clear size disparity, and they are in the process or have shown ability and intent to cause "great bodily harm" or death, you would be justified. As pointed out in other posts, a lot can happen between such an incident and a jury seeing it (which hopefully they wouldn't if the above was the case), and it isn't a bad idea to imagine the worst possible spin for you being put on it, and make sure your decision can stand up to that.
 
fbernar-

Take a look at Jenkins v. State 942 So.2d 910 (Fla. 2d DCA 2006). (available at: http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2006/October/October 11, 2006/2D05-1780.pdf, if hyperlink does not work)

Here a Florida Appellate Court actually examines the use of deadly force in response to a punch, and reversed the trial court and ordered Mr. Jenkins be acquitted.

Please note that the events described herein transpired in 2004, prior to the 2006 "stand your ground changes" in Florida Law, and the court applied the 2004 law which which formerly read:

“A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against such other's imminent use of unlawful force. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”

The current version I previously cited is more favorable to self-defense.

Also note, as I am sure the poop pickers will point out, Mr. Jenkins still had to deal with arrest, prosecution, trial and an appeal before he was ultimately acquitted. I am sure he would have preferred to stay in a trailer and not deal with this. Also, note that Mr. Jenkins did not turn himself in until several days later, so no statement was made until he had a chance to clear his head, collect his thoughts and possibly speak with an attorney. If you find yourself in this situation - ****, ****, ****, **** and don't say anything, people on an adrenaline rush talk themselves right into jail.
 
As far as probabilities, consider the eight or so articles every month in the American Rifleman/Hunter's "Armed Citizen" newspaper clips where citizens have had to use deadly force. Over and over, issue after issue, year after year, there is some reference to an official statement about "...justified...no charges..."

So, yeah, every situation is different. But if you tote, you're supposed to have studied the law ON YOUR OWN! Add some common sense and pragmatism to that knowledge and odds are you'll do okay.
 
As far as probabilities, consider the eight or so articles every month in the American Rifleman/Hunter's "Armed Citizen" newspaper clips where citizens have had to use deadly force. Over and over, issue after issue, year after year, there is some reference to an official statement about "...justified...no charges..."
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To that I would say they obviously pick cases of clear self defense that were not as discretionary as many to highlight citizens defending themselves.

In self defense cases that are challenged they don't typically get reported as "self defense" by the media, because the press release or information given by police is something along the lines of some people had an altercation, and one shot/stabbed etc the other.
That case may then go to trial, and a long time later if the person was found to have acted in self defense and wins their defense the media never picks up on it because it is old news, unless it was a high publicity controversial case earlier on they are updating.
This means no official media source mentions it as self defense initially, and maybe never. So it's not one of the cited self defense stories.

The majority of clear cut self defense cases reported as self defense from the start are home invasions and store robberies. Where what took place is a lot clearer from the start. These are the type of cases presented as the ideals in pro-gun magazines and articles, where the perception of the defender is positive from the start.

Location also matters. In one rural part of the state it may initially be considered self defense and make it into the news as such to be cited, yet near Miami it may initially be reported as a fight turned deadly, where X has been charged. The self defense angle never becoming clear to the public, and the trial where such details are exposed not followed.
The LEO and district attorney of the area play a huge role in initial perception of events and how a case is in turn presented to the media while it is still fresh and they care about the details.
Then of course there is people that lose their legitimate self-defense claims, we call them criminals and those incidents are never cited or known as self-defense incidents.
Many of the Harold Fish type cases never make the news, irregardless of the eventual outcome.
In fact had that specific case not been a highly public case he would most likely have remained in prison just another criminal serving his sentence for a crime he was tried and convicted of. It was only the high publicity that resulted in a demand for change and combined with other factors for his eventual release.


So this all creates a perception bias when you read about self defense. You read primarily about the clearest and most straight forward cases. A percentage of the total.
 
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Zoogster, if you go back to the opening post, isn't he talking about clearcut cases?

Florida. No duty to retreat. Minding own business. Felonious assault offering serious bodily harm. Sebastian's cite is applicable. If you follow Florida news very much, it's high odds that he would be okay with the legal system, based on past history.
 
Posted by Art Eatman: ...if you go back to the opening post, isn't he talking about clearcut cases?
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Of course the cases described by the OP may be clearcut, or they may not. Someone started attacking his friends, unprovoked.

The problem in these things, as in the Larry Hickey case, is that the investigators, the charging authorities, and the courts have to decide on the basis of not only the testimony of the actor and his friends, but also on the basis of the testimony of the other parties, and if anyone else saw anything, on their accounts, which may be incomplete or downright distorted--plus forensic evidence or the lack thereof.

If the preponderance of all of the evidence were to indicate that the alleged felonious assault had probably occurred, there would be no prosecution permitted in Florida, or in many other jurisdictions. However, the account given by the actor alone would not likely suffice. "We were minding our own business"; "he started it when..."; "I saw four people fighting and that man drew a gun and joined one side"; "I did not see the beginning of the altercation"; "we found no weapon"; "the injuries to the other parties were more severe" and so forth will all be weighed.

From that standpoint, altercations that occur on the street, particularly when one party is not armed, are usually nowhere near as "clear cut" (to those who must judge) as incidents that take place in the kitchens and bedrooms of armed citizens.

The answer to the OP's first question is "perhapsd, but the evidence had better support your account".
 
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The problem in these things, as in the Larry Hickey case, is that the investigators, the charging authorities, and the courts have to decide on the basis of not only the testimony of the actor and his friends, but also on the basis of the testimony of the other parties, and if anyone else saw anything, on their accounts, which may be incomplete or downright distorted--plus forensic evidence or the lack thereof.
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There ain't nothing you can do if the neighbor/witness, the responding officer or the prosecutor has a vendetta against you except go to trial. However, if your choices are death or roll the dice with the criminal justice system everyone on this board is going to take the later. It is not very productive to say "the law says you get off, but you might get framed by your ex-girlfriend who hates you and says she witnessed everything, so you should be careful."

I don't know that hiding out and turning yourself in days later really helps your case. @_@
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It did because he did not make a statement to the police immediately. It would have been better if he stuck around and invoked his right to silence, but its a hell of a lot better than if he blabbed to the police. What is a homicide detective going to do when he arrives on scene and the perp. (Jenkins), with priors (he was sentences as a repeat offender) is sitting there next to a stabbed body with his bloody knife (the murder weapon)? The detective is going to put on the full court confession press and get Mr. Jenkins to admit that, A. He wanted to kill the real perp. B. He chased after him, & C. twisted the knife, thus eliminating all the evidence Mr. Jenkins put on later. I'll bet my paycheck that Jenkin's attorney assisted him with the final version of events at trial, he didn't come up with it himself. If Jenkins had given an initial version of events to the police he would be locked into it, and the attorney could not help him with it. Thats why the most important thing you can do is ****.
 
To be honest, I can't imagine this scenario actually happening. Maybe a gang of rowdy youths might decide to start randomly wailing on you or your friend. I have heard of that happening, with sometimes death being the result. In that case, yes, I would draw, but may or may not shoot. I am outnumbered, and who knows if someone has a small knife on them. If I had OC spray I'd start dousing immediately, with no warning.
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Exactly. There's too much legal crap about firearms that prevents you from using it in the vast majority of defensive situations. There's also a negative public image of guns/knives being criminal weapons. If you're young and in shape, you can forget about it. They're going to ask, why didn't you run away, why couldn't you have pushed him off and etc. If you heard of the Gerald Ung case, it was an unarmed criminal versus an armed defender. The prosecutor had the nerve to ask "Why didn't you just cross the street?", and amazingly the jury later admitted that was a factor for consideration.

The restraints for OC and other non-lethal weapons is less stringent and the risk of consequences much less. With a firearm, you have to wait for "reasonable belief of imminent harm", which is often too late to act. In situations like this, I would exhaust all non-lethal force options and probably still never draw a gun, because it's not my life on the line.
 
Couple things. You can sit here all day and dream up possible scenarios that COULD happen in which you might or might not be justified in the use of deadly force. But it doesn't really sound like you've had a great deal of training in those types of situations. Not saying you can't shoot, but shooting at the range and handling a situation that comes on suddenly in a public venue are two different animals. I agree with the others who recommend non-lethal weapons in this instance.
The real question here isn't "would I be justified." The real question is, "Am I sufficiently trained with a firearm (both physically and emotionally) to handle situations that may arise?" And if the answer is no, then you need to either take some serious classes (tactical, CQB, home defense, etc.) or consider other alternatives. Please don't misunderstand, I'm not advising you against gun ownership or CCW, I'm advising more extensive training than a CCW class is going to provide. With rights (RKBA) come responsibilities and if we're going to carry, we have a responsiblity to learn to use a weapon efficiently and effectively.
 
Couple things. You can sit here all day and dream up possible scenarios that COULD happen in which you might or might not be justified in the use of deadly force. But it doesn't really sound like you've had a great deal of training in those types of situations. Not saying you can't shoot, but shooting at the range and handling a situation that comes on suddenly in a public venue are two different animals. I agree with the others who recommend non-lethal weapons in this instance.
The real question here isn't "would I be justified."
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The real question seems to have been missed by you and others. At no point am I asking can I shoot, should I shoot, what happens if I shoot? My question was DRAWING. Shooting is not part of my question. Thanks.
 
I do agree though with people talking about OC spray and the such versus shooting or something else. I was asking though about drawing, not hitting or shooting or spraying. I think we kind of went off topic, but I really appreciate all the feedback from each and every one of you. :)
 
Technically, you're OK to draw and shoot, because he did commit felonious assault. The problem with drawing is, if you draw you should be prepared to shoot. Otherwise, you've escalated a situation by introducing a firearm. If the guy leaves, great, but what if he calls your bluff?
 
Posted by Sebastian the Ibis: There ain't nothing you can do if the neighbor/witness, the responding officer or the prosecutor has a vendetta against you except go to trial.
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I wouldn't rank the possibility of a vendetta very high among the risks.

The best prosecutors and officers must enforce the law on the basis of the evidence that they can gather. If one draws a gun and points it at someone else absent lawful justification, it is a crime, and in Florida there is a mandatory penalty for that crime. Mounting a defense of justification requires evidence.

Even the most unbiased witness testimony can be wrong. If a witness did not see the initial attack, but only turned to see the actor seeming to threaten someone else with a deadly weapon, that testimony will not be very helpful at all. No vendetta is required.

The relevant Florida statute (and those of some other states) contains a provision that protects the actor against prosecution if the threat or use of deadly force was lawfully justified. If the actor is able to convince a judge on the basis of a preponderance of the evidence that he or she was justified in drawing his firearm, prosecution cannot lawfully proceed.

Should the actor not be successful at that stage, the prosecutor will decide what to do next. If the prosecutor believes that the evidence will show the actor's guilt beyond a reasonable doubt, he or she will likely proceed. If the actor can present at least some evidence in support of justification, he will receive a favorable jury instruction, and it will then be up to the prosecution to prove that the evidence shows beyond reasonable doubt that the defendant was guilty.

Thats why the most important thing you can do is ****.
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True unless your defense will be one of justification. See this.

Posted by fbernar: The real question seems to have been missed by you and others. At no point am I asking can I shoot, should I shoot, what happens if I shoot? My question was DRAWING. Shooting is not part of my question. Thanks.
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One more time: in most states, including yours and mine, you may not lawfully draw unless you are justified in shooting.
 
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