Pulling a gun on a unarmed assailant?

[jim in Anchorage]

Rather then start a new thread, I thought this story fit perfectly with what we are discussing here. Note the assailant was not armed and the shooter [the homeowner] was not charged. No mention of who was bigger or stronger.http://www.buffalonews.com/city-region/police-blotter/fredonia-man-will-not-be-charged-for-shooting-man-who-threatened-him-20160503

 

[Sam1911]

Yup. Sometimes it works out that way. That's a very lucky homeowner, for so many reasons.


Kind of like folks winning the lottery or falling off a building but surviving: Entertaining to hear about things like that happening, but important not to use them as object lessons.

 

[Kleanbore]

Good Lord!

Heading out after fleeing felons is tactically idiotic and legally risky.

It is the position of this office that the homeowner not only acted within the law,...

Well, maybe.

...but also with discretion, as they shot only at the legs of the subject hit.

HOLY COW! That Acting DA obviously knows next to nothing about shooting or about human anatomy.

Reason to be learned here? DON'T OPEN THE DOOR TO STRANGERS!

The homeowner drew on more than one inside straight here. Talk about luck!

 

[Frank Ettin]

Rather then start a new thread, I thought this story fit perfectly with what we are discussing here. Note the assailant was not armed and the shooter [the homeowner] was not charged. No mention of who was bigger or stronger.http://www.buffalonews.com/city-region/police-blotter/fredonia-man-will-not-be-charged-for-shooting-man-who-threatened-him-20160503

And exactly what do you think that means? It means, in the context of this discussion, pretty much nothing.

This is one incident with its own, unique facts. And the legal outcome for any incident will be decided based on exactly what happened and how it happened.

Furthermore, this isn't necessarily over. There could be a civil suit against the homeowner. And the current position of the District Attorney's office is subject to change. A public statement that the homeowner will not be charged isn't necessarily legally binding, and the DA could change his mind based on new information. The DA has until the statute of limitations has expired to file charges.

All this really illustrates is that under the right circumstances it might be possible to justify shooting at an unarmed person. What's important is understanding what those circumstances are.

 

[Shaq]

Yes I was. I have no idea what this person was capable of. When he first started yelling at me he was too far away and it was too dark for him to possibly recognize me. So it's plain to me he was targeting whomever he saw to get violent with. Given his out of control behaver and threats It is not unreasonable for me to think a knife to my chest was next.


I have been thinking about this all day. If I had been carrying [and I will be next time believe me] I would have drawn but not fired unless he actually attacked.

I've been there. If you were carrying, it would be wise to first create some distance between you. When someone was confrontational with me & headed toward my driveway (& twice my size & half my age), I backed up a couple of steps & held up my hand & said, "Stop." He stopped for a second, then continued to advance. I backed up again, turned my hip so he could see the HK USP, put my hand near the grip & said (louder), "I said stop." When he saw the gun, he said "Whoa, dude" & stopped. I said, "Whoa, dude...goodbye" & he left.

You have to be careful about drawing a gun; troublemakers may call the police & distort & editorialize the story so it makes you look like the aggressor. When a gun is involved, the police may decide to arrest the gun owner.

 

[jim in Anchorage]

And exactly what do you think that means? It means, in the context of this discussion, pretty much nothing.

This is one incident with its own, unique facts. And the legal outcome for any incident will be decided based on exactly what happened and how it happened.

Furthermore, this isn't necessarily over. There could be a civil suit against the homeowner. And the current position of the District Attorney's office is subject to change. A public statement that the homeowner will not be charged isn't necessarily legally binding, and the DA could change his mind based on new information. The DA has until the statute of limitations has expired to file charges.

All this really illustrates is that under the right circumstances it might be possible to justify shooting at an unarmed person. What's important is understanding what those circumstances are.

On the bolded:Aren't they all? The DA would look like a buffoon to charge the shooter after coming out so strongly for him ln public. It's not like he said we will not charge at this time.
civil suit? Give it try, I guess. In the course of less then a minute the assailant attempted a home invasion, then left his car to charge at the homeowner whom he knew was armed.
It would take a fantastically biased jury to award damages.

 

[Frank Ettin]

On the bolded:Aren't they all?...

Yes, every incident is different. And that means that a news report of one incident has very limited, if any, utility for the purposes of forming conclusions about general rules or legal principles.

Furthermore, a single news report can't possibly include all the facts that might have been material to a DA's decision about the disposition of the matter. Information gets left our -- because of space constraints, because the reporter or editor didn't think the information contributed to the public's understanding, or because they didn't have that information at the time.

The DA would look like a buffoon to charge the shooter after coming out so strongly for him ln public. ....

Maybe and maybe not. It depends on why the DA changed his position and on how it's presented.

...Give it try, I guess. In the course of less then a minute the assailant attempted a home invasion, then left his car to charge at the homeowner whom he knew was armed.
It would take a fantastically biased jury to award damages.

Again, maybe and maybe not. You're assuming that your summary, based on the limited information in the article, is absolutely accurate and all there is to it. Neither might turn out to be the case.

Limited information is of only limited use.

 

[ROAshooter]

after carefully reading though six pages of comments....I come to the conclusion...that a law abiding citizen...has less rights in a stress filled situation...than a potential criminal....

 

[Good Ol' Boy]

This has been a great read even though I'm late to it.


There seems to be this thing, I don't know if it's a lack of understanding or just a lack of acknowledgement, about what you/we/us deem as "right" (or the way it "should be") and what the law says.

I feel like most probably there is a majority of gun owners who go and buy a gun and carry it without much more than a hunter safety course. Maybe they throw lead on the weekends sometimes, but ultimately have little if any understanding of law or self defense training. That is NOT directed at anyone on this forum or much less in this thread, but you can easily find factual data that will tell you the members on this forum are a slim bunch compared to the overall amount of GO's in the nation.


I've been around guns all my life, but mostly for plinking/hunting. It's only been in the last year that I bought my first pistol with the intent of self defense. Currently I do not carry and only keep it in the home. Since stumbling across this site I have realized the importance of understanding of the law. I was already planning on getting continued training but hadn't really considered law. I have been researching law well before finding this wonderful forum but now find I have quite a bit more reading to do, as well as training.

Someone mentioned folks being scared away from carrying or acting while carrying, in fear of the legal consequences, that is not my take on it. An example of my thinking would be when you join a branch of the armed forces they don't just hand you a riffle and send you off to a war. There is some formal training that is rightfully issued first. I am NOT advocating that citizens by law should have to have a certain amount of training/knowledge/understanding to bear arms, I'm just saying IMHO it's a good idea to CHOOSE to do so, which is what I am choosing to do before going out into the public with a firearm.

I don't look down on anyone who wants to just go buy a gun and start carrying, I only ask that folks show me the same courteousness when I choose to educate/train myself before actually carrying.

 

[Frank Ettin]

..I come to the conclusion...that a law abiding citizen...has less rights in a stress filled situation...than a potential criminal....

You might look at it this way: If a person threatens or commits an intentional act of violence against another human, and if the act of violence can not be legally justified, that person is no longer law abiding. An intentional threat or act of violence against another human is a criminal act -- being able to legally justify it is the defense to criminal responsibility.

 

[RetiredUSNChief]

Couple of things here, and some requests for clarification.

The Fredonia link says:

“It is the position of my office that the homeowner, who I will not name in an effort to protect their identity, did not operate outside the confines of the law when firing three rounds from a .45-caliber, properly licensed handgun,” Swanson said in a statement.

This, in itself, would not appear to mean much, legally speaking. For example, wasn't this pretty much the initial stance with respect to the George Zimmerman/Trayvon Martin debacle? And it ended up going to trial.

Here's my first request for clarification: It seems to me that unless a case goes to trial, there is no guarantee that it can NEVER go to trial at some point in the future (within the limits of the applicable statues of limitations). It seems to me that such a scenario is very similar to the phrase I once learned in the Navy "Charges are withdrawn without prejudice." Which translates, in layman's terms, to "we refer the right to re-prefer charges at some point in the future if we feel like it."

NOTE: Whoops! Frank answered my first clarification in post# 1219! Thanks!



Here's my second request for clarification, with respect to criminal and civil lawsuits. In states where there are self-defense immunity laws, does this not require that one first go to trial and be adjudicated "not-guilty"? In other words, to claim protection against a civil lawsuit in a self-defense scenario, one would first have to be tried in a criminal court.

 

[Spats McGee]

. . . . Here's my first request for clarification: It seems to me that unless a case goes to trial, there is no guarantee that it can NEVER go to trial at some point in the future (within the limits of the applicable statues of limitations). . . . .

I haven't read this entire thread, nor whatever is at the Fredonia link. That said, I think the above quote is pretty well spot on. Charges and civil cases can be brought at any time before the statute of limitations runs. Oh, and one other small item to consider, though. There's usually no statute of limitations for murder.

. . . . Here's my second request for clarification, with respect to criminal and civil lawsuits. In states where there are self-defense immunity laws, does this not require that one first go to trial and be adjudicated "not-guilty"? In other words, to claim protection against a civil lawsuit in a self-defense scenario, one would first have to be tried in a criminal court.

That's going to depend on the particular state we're discussing. I haven't done an exhaustive survey of the various Castle Doctrine & Self-Defense Immunity statutes, but I can easily image that one state might require an actual adjudication that one's actions were SD, while that might not be the case in others.

 

[danez71]

said by Good Ol Boy

I was already planning on getting continued training but hadn't really considered law. I have been researching law well before finding this wonderful forum but now find I have quite a bit more reading to do, as well as training.

That's a really smart view point.

 

[ROAshooter]

the act of violence can not be legally justified, that person is no longer law abiding. An intentional threat or act of violence against another human is a criminal act -- being able to legally justify it is the defense to criminal responsibility."

which brings to question...how many victims of violent crimes...are those who waited too long...did not take appropriate steps...to defend themselves...because of the "legal" risks

 

[Frank Ettin]

which brings to question...how many victims of violent crimes...are those who waited too long...did not take appropriate steps...to defend themselves...because of the "legal" risks

As well as raising a question as to how many people are now convicted felons or serving time in prison because they acted precipitously. And then there's the question of how many innocent folks are dead or have been gravely injured because someone was too quick to interpret an innocuous question as a threatened mugging.

 

[Kleanbore]

Posted by RetiredUSNChief:

Here's my second request for clarification, with respect to criminal and civil lawsuits. In states where there are self-defense immunity laws, does this not require that one first go to trial and be adjudicated "not-guilty"? In other words, to claim protection against a civil lawsuit in a self-defense scenario, one would first have to be tried in a criminal court.

State laws vary, but a not guilty verdict would neither be required nor adequate for defending against a civil suit.


See this:http://www.thehighroad.org/showpost.php?p=9021938&postcount=1

Here's the flip side:

It is extremely important to understand that the fact that a defender is not charged in the criminal justice system does not mean that he or she has met the standard for justification to prevent civil liability. Nor does an acquittal in criminal court automatically establish civil immunity; and depending upon the laws of the jurisdiction, acquittal in criminal court may indeed fall far short of protecting a defendant from civil liability.

On the criminal side, the burden of proof for justifying the use of force varies among jurisdictions. In some states, such as New York, to cite only one example, a defendant who clams self defense must convince the triers of fact that the act was lawfully justified by showing by a preponderance of the evidence that all of the elements of lawful self defense had been present. In others, such as Arizona, Florida, and West Virginia, the state must prove beyond a reasonable doubt that the defender’s act was not justified. Thus, a prosecutor who believes that he or she would be unlikely to meet the BARD threshold may choose to not charge a suspect. Or if charges are filed, the state may fail to get a conviction.

The first outcome would not meet the standard for civil immunity--nothing has been proven. Nor would the second, in a state in a jurisdiction in which the state would be required to prove beyond a reasonable doubt that the defendant had not acted in lawful self defense. In a civil trial, only a preponderance of the evidence is necessary to support a judgment against a defendant. Put another way, unless more of the evidence supports justification than liability, the judgment will go against the defendant. In some jurisdictions, the burden of proof for the state in a criminal trial involving a claim of justified self defense is much greater than that for a plaintiff in a civil trial.

 

[old lady new shooter]

Against an unarmed attacker there'd have to be a major, obvious disparity or force to be legally justified. I.E. 80yr old or cripple vs fit young guy, etc etc. Use of lethal force against a ruffly equal unarmed attacker would likely end you in court. Maybe you can explain your fear away there, but probably going to trial. In the eyes of the law, in general, a simple punch isn't a lethal threat.

Personally being an old lady with physical issues I would have the disparity argument in my favor, but I wonder whether even a young fit male could be justified in at least drawing a firearm without knowing whether the assailant is armed... because for all you know he could be a black belt in karate and not need a weapon other than hands and feet.

 

[Frank Ettin]

...I wonder whether even a young fit male could be justified in at least drawing a firearm without knowing whether the assailant is armed...

It's conceivable. But again, as we say repeatedly, it all depends on the exact circumstances. So can the defender articulate facts of observations which would lead a reasonable person in like circumstances to conclude that lethal force was necessary to prevent an imminent, lethal attack?

 

[Sam1911]

ROAShooter you might recall how many times we've said that shooting someone in (you feel) self defense is just about the second worst thing that can happen.

Dying is worse, no question, but having to shoot someone is a TERRIBLE thing that can make one wonder just how much worse the alternative was.

If someone causes you such fear of death that you shoot them, even if you prevail and even if they die, they've still cut a chunk out of you. You will bear the emotional weight and stress of having been assaulted, threatened, and probably injured, and of having killed someone and seen them die in front of you. You may eventually be ok, or you may carry that and struggle with it for a very long time.

You will also bear the intense scrutiny of law enforcement, the state prosecutor, and of your fellow citizens as they look at every thing you did, should have done, known and should have known, and pick apart in great detail a decision and series of actions you took in extreme haste and duress. And when they're done, they'll tell YOU whether you were in the right and are free to try to put your life back together (and good luck with that), or whether you were not, and your freedom -- and your job, home, marriage, relationships, money, possessions, hope and dreams -- are all torn from you as you pay the crushing legal fees, and spend years of your life in prison with the "real" criminals.

We like to talk about self-defense and home defense as if it was all some oddly positive thing. Like we're doing what a man needs to do, and it's all very exciting, and everyone's going to stop by just to shake our hand and thank us for ridding the world of another danger. If anyone looks at us differently afterward, it will be with an increased nod of respect.

It isn't that. It is terribly unjust. Terribly unfair. A huge, probably life-altering burden to carry. You've said that it almost sounds like the defender has fewer rights than the attacker. That's hardly the half of it. Even in the very best outcomes, as soon as that altercation happens, that bad guy has taken from you something you can never get back, and the extent of the damage is far, far out of your control.

Should that stop you from acting? Stop you from reaching for that gun? The answer isn't a simple yes or no. There are times when the terrible thing happens and you simply must act. Then act. But if there are alternatives -- even scary and unpleasant ones -- they deserve serious consideration.

 

[Kleanbore]

Posted by jim in Anchorage:

The DA would look like a buffoon to charge the shooter after coming out so strongly for him ln public. It's not like he said we will not charge at this time.

He may well decide that admitting the error of his hasty remarks is a more prudent course of action than not doing so.

That would most likely come about in the event that new forensic or eyewitness testimony calls into question the reasonableness of the shooter's belief that the shooting had been necessary, or in the event that it is decided after careful analysis of the fact that the shooter had headed out with a gun impairs or even negates his basis for claiming self defense under the law.

And, of course, the "Acting" DA may well not be the one to decide. He will be replaced, at one time or another.

civil suit? Give it try, I guess. In the course of less then a minute the assailant attempted a home invasion, then left his car to charge at the homeowner whom he knew was armed.

So the report would seem to indicate, though the perp has been charged only with second degree criminal trespass. It also tells us that the shooter left his house and headed after the men, which was obviously neither necessary nor prudent, and which could put in question the justification, both in a civil trial and in a criminal case. The burden of proof in the former is a whole lot lower.

It would take a fantastically biased jury to award damages.

Try sitting through some civil trials before making that judgment.

 

[Casefull]

deleted.

 

[danez71]

Lots of lawyer talk on this subject.

Which is exactly why this section of the THR is very valuable.

Whether or not an individual wants to gain knowledge and perspective or choose to ignore the information is entirely up to that person.

Trying firearm and self defense laws to "ridiculous minority rights" is a bit ridiculous in of itself.

 

[Casefull]

I deleted my post moderators. I am dangerously independent in my thinking. Thanks for showing me my 'wrong headed' thinking. I will keep my opinions to myself and let those who are educated and open minded define proper behavior.

 

[Casefull]

Trying firearm and self defense laws to "ridiculous minority rights" is a bit ridiculous in of itself.

"Those who do not know history are doomed to repeat it". How can one not see the cultural decay and it's influence on everyday life and law? Unless the idea of our slide into a third world country is ridiculous. I am not able to close my eyes that tight, although I wish I could.

 

[danez71]

"Those who do not know history are doomed to repeat it". How can one not see the cultural decay and it's influence on everyday life and law? Unless the idea of our slide into a third world country is ridiculous. I am not able to close my eyes that tight, although I wish I could.

I get what you're saying. And I can agree that the catalyst of the two may have some philosophical commonality.


Its just that this section... the legal section.... isn't about philosophies. Is about the laws, the words used in those laws, and how previous cases have applied those laws.