What would you do in this situation? Woman murdered in broad daylight

[Kleanbore]

as I mentioned previously, in most of the states this would be a legal shoot.

Is that a legal opinion?

Now, suppose you do shoot, say three times. The guy goes down. A "witness" who has just appeared hears the shots and sees you shooting, and then sees you holding your gun and looking down at the person. He does not notice the other man's gun.

You look at him with your gun lowered.

Now suppose he shoots you.

Do you believe that in most states that would be a "legal shoot"?

How do you think that would differ from the case at hand?

And how about the witness who arrives as he shoots you?

 

[Mainsail]

Why would I turn toward a witness with my gun still in my hand?

 

[Duke of Doubt]

Now here's the really nasty one:

The guy turns toward you with his gun in his hand, you draw and aim at him, and he shoots you dead. Guess what? Although he may or may not be guilty of the original homicide, in my state he is innocent in your death.

 

[Jeff White]

AOJ was developed for the police community. It is not at all appropriate for a private citizen who has no duty to act. A private citizen is free to disengage. AOJ does not take that into consideration.

When AOJ was developed for police training in the late 1970s there was very little legal concealed carry, and almost no requirement for training for those who did have a rare permit.

When CCW laws started passing in the 1990s the legislators and training community turned to police training models because that's all that existed on the use of deadly force. No training programs have been developed specifically for the armed citizen. The majority of the instructors out there have police backgrounds. Why, because that's what the public wants. The public wants to be trained by professionals. Unfortunately, what is right for someone who has a sworn duty to act is not necessarily the right answer for the armed private citizen.

Until someone develops a use of force model for the private citizen we'll continue to have this discussion.

 

[Fred Fuller]

Jeff,

I still think the ADEE model is the best available for the armed citizen at present. As often as I cite it, I should probably encourage Skip Gochenour to set up a PayPal account so I can pay him royalties, but his discussion of ADEE is at http://www.teddytactical.com/archive/MonthlyStudy/2006/02_StudyDay.htm .

In short, ADEE stands for:

Avoid
De-escalate/Disengage
Escape
Evade

Granted, that model runs contrary to the ideas of a certain number of people who have taken upon themselves the responsibility of going armed. But IMHO it is still the best available model for the private citizen.

Or as John Farnam puts it: Winning a gunfight, or any other potentially injurious encounter, is financially and emotionally burdensome. The aftermath will become your full-time job for weeks or months afterward, and you will quickly grow weary of writing checks to lawyer(s). It is, of course, better than being dead or suffering a permanently disfiguring or disabling injury, but the "penalty" for successfully fighting for your life is still formidable.

...

"A superior gunman is best defined as one who uses his superior judgment in order to keep himself out of situations that would require the use of his superior skills."

-- http://www.defense-training.com/quips/2003/19Mar03.html

lpl

 

[Kleanbore]

Why would I turn toward a witness with my gun still in my hand?

In most SD training I've seen recently, the shooter is taught to quickly look around after shooting to assess the possibility of additional threats at the scene. You've just shot some one. Why would you ever assume that he was alone?

Now here's the really nasty one: The guy turns toward you with his gun in his hand, you draw and aim at him, and he shoots you dead. Guess what? Although he may or may not be guilty of the original homicide, in my state he is innocent in your death.

You beat me to it, Duke! If one has initiated violence with someone, fails to try to disengage if things escalate, and then uses deadly force, most state laws preclude a justifiability defense on the grounds of self preservation.

Not so in the scenario you describe!

Any states that differ in that regard?

I still think the ADEE model is the best available for the armed citizen at present.

I agree, Lee. As a layman I don't know about how that plays in states with stand your ground laws, but I do know that for me personally, it's the lowest risk option anywhere.

Where I live, they teach A, O, J, P--P is for Preclusion. They then explain ADEE.

Here is a worthwhile excerpt from http://www.useofforce.us/

Preclusion is not so much an individual consideration as it is an all-encompassing lens through which to view your actions. More complex than the others, it is nevertheless just as important. It is the idea that, whatever the situation, you are expected to use force only as a last resort—that is, only when the circumstances preclude all other options.

In other words, even when the ability, opportunity, and jeopardy criteria are satisfied, and knowing that you must clearly do something to protect yourself, the use of force, particularly lethal force, may only be that “something” if you have no other safe options.

The word “safe” is key there, because at no time does the law ever require you to choose an action that endangers yourself. If you can run away or retreat, you should, but if doing so would put you in harm’s way, you are not required to do so.

Preclusion is the factor that is missing in most self-defense arguments, and thus the reason most fail. You must remember that you bear the burden of proof; until you prove otherwise, the law merely sees two equal citizens in a dispute. You can say, “He tried to hit me,” but then the police and the courts will ask, “Why didn’t you _____?” You must have no options to offer to fill in that blank—there must have been no other courses of action you could have taken to maintain your safety except the use of force. Otherwise, you’re just fighting because you want to, and that’s a crime.

I'm not sure that the statement "you bear the burden of proof" is true in all places, but my lay opinion is that is that it is up to you to present evidence showing that your use of force was justified.

Shooting someone in proper self defense is the next-to-last thing I ever want to do.

Tied in last place are getting shot, having a loved one killed or severely injured, hitting an innocent third party, and being convicted of murder.

Third from last is shooting someone and having to prove my innocence, and succeeding after a lengthy and expensive legal battle.

I think that's about the same for my LEO friends.

 

[Seattleimport]

Now here's the really nasty one:

The guy turns toward you with his gun in his hand, you draw and aim at him, and he shoots you dead. Guess what? Although he may or may not be guilty of the original homicide, in my state he is innocent in your death.

At that point I don't care about his guilt or innocence in causing my death, because I'm dead.

And that's the rub. Were I the witness, I'd get the hell out of dodge. This crazy scene most certainly is no longer my problem, and I want nothing to do with the shooter or his remaining bullets. He could be a plainclothes cop, he could be a crazy ex boyfriend; I don't care. I'm out of there.

Calling 911 when a safe distance away and certain of not being followed, of course. That woman might be able to be saved by EMS.

If I was carrying, the response would be the same. I'm not going to initiate a gunfight. Period. Heck, the answer stands even if he points and shoots at me--I'm flooring it and getting out of there.

Bottom line is that I'm not pulling the trigger until it literally is my last and only option.

 

[Duke of Doubt]

Seattleimport: "This crazy scene most certainly is no longer my problem, and I want nothing to do with the shooter or his remaining bullets. He could be a plainclothes cop, he could be a crazy ex boyfriend; I don't care."

I was excoriated for a statement something like this, further above. It's O.K.; I've done worse than to walk away from a hypothetical shooting incident. If everyone jumped into a phonebooth to change into his cape and tights every time he observed a crime ... man. Besides, the shooter, while perhaps committing a homicide, might in fact be doing the world a favor you might not want to countermand (dealt with that, too, above; was totally ignored).

 

[Jeff White]

If everyone jumped into a phone booth to change into his cape and tights every time he observed a crime ... man.

That would be fun to watch, given how few phone booths remain. Sorry I just had this funny vision of a gunfight between several of the "my gun is the only thing standing between a lawful society and anarchy!" crowd over getting into the one phone booth within 60 blocks.

Fortunately most of that attitude is just talk. An electronic way of telling the world how tough and manly one is. To intervene or not is a decision that can only be made by the person on the scene at that time. No one else knows what he saw, how he perceived it, his skill level and his personal moral code. No one is qualified to second guess that decision, they weren't there.

 

[Mainsail]

To intervene or not is a decision that can only be made by the person on the scene at that time.

I can agree with that entirely. It's difficult to make definitive judgments based on even a firsthand story, after all, few of us that have read the story can agree on what happened. Jeff, I have to ask; are you able to carry concealed (or openly) there?

 

[Jeff White]

I was a police officer for 22 years, so yes I can carry. I wish that everyone here could.

 

[rainbowbob]

Would you you have been in legal trouble if you had shot the suspect down?...Why take the chance?

Answer: To prevent him from shooting you or to effect an arrest in order to prevent him from escaping his crime and/or from shooting other innocent victims.

I'm sorry for showing up late to this party, but after reading most of the posts, that which stands out most prominently was provided by Jeff White - and provides a convincing argument that a citizen's arrest, using all necessary force, may well have been justified.

Although Jeff quoted these statutes presumably to demonstrate the ambiguity of the laws in many cases (e.g., the case under review in Jeff's example), I believe these same statutes apply unambiguously to the scenario presented by the OP and discussed at length in this thread.

Section 18-1-707(7) states:

A private person acting on his own account is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest, or to prevent the escape from custody of an arrested person who has committed an offense in his presence . . . .

However, � 16-3-201, C.R.S. 2002, provides that "A person who is not a peace officer may arrest another person when any crime has been or is being committed by the arrested person in the presence of the person making the arrest."

 

[Kleanbore]

I'm not going to initiate a gunfight. Period. Heck, the answer stands even if he points and shoots at me--I'm flooring it and getting out of there.

My thought exactly!

Bottom line is that I'm not pulling the trigger until it literally is my last and only option.

i think that pretty much sums up the duty and proper decision of the law abiding citizen, and I think it does it very well indeed.

 

[Jeff White]

Bob, I said a citizens arrest would be legal under Colorado law. Anyone deciding to make a citizens arrest needs to be cognizant of the fact that civil tort protection doesn't extend to private citizens. Being sued for false arrest, unnecessary use of force and other hazards that the sworn officer is protected from are hazards that you take upon yourself when you make a citizens arrest. The state won't defend you or contribute as much as a penny to your defense.

The good citizenship award and key to the city will look good on the mantle of the shipping crate down by the railroad yard that is now your home after the plaintiff's attorneys get through with you.

I know officers who were sued for wrongful death and excessive force after they had lost their weapon in a gun grab, were shot 3 times, saved by their body armor, wrestled the control of their weapon back and shot and killed the bad guy, after he shot another officer who was responding. No the family of the suspect didn't prevail, but the officer had tens of thousands of dollars tied up in her defense that the state paid. A private citizen doesn't have that protection. Your defense is on your dime. Want to tie up your life for several years and maybe lose everything you have worked for all your life? Jump in and make a citizens arrest or seriously injure or kill the suspect trying to. You may be good to go in criminal court and even get praise and awards, but in civil court you are on your own. Better make sure your arrest is in keeping with current best practices and procedures.....

 

[Eagles6]

Use your instincts and common sense. If you feel that your life, safety or those of others is jeopardized then do what you have to do. Think about now and not when it happens.

 

[rainbowbob]

The good citizenship award and key to the city will look good on the mantle of the shipping crate down by the railroad yard that is now your home after the plaintiff's attorneys get through with you.

Jeff:
You make very good points regarding the monetary vulnerability inherent in such an encounter and its aftermath - and this should not be taken lightly by anyone.

[By-the-way...if I'm living in crate, can I at least locate it down by the river rather than the train-yard?]

All that aside, doing what you think is right - and what is legal according to the statutes you provided - is the way we Americans have always rolled. Sometimes, at great cost to our own well-being.

A willingnes to do the right thing (at least what we honestly believe to be the right thing) doesn't mean we are looking for justification to shoot somebody - or looking to be fitted for a cape and tights - or expecting a Hero-of-the-Year trophy.

Caring enough about our fellow-citizens to do the right thing - despite the inherent risks - is just, well...the right thing to do.

That will sound like sentimental foolishness to many - but not to all.

 

[Peakbagger46]

As a cop? I would yell, "Drop..." followed by several shots, followed by "...the gun!"

A private citizen has the same rights here in CO (the legal right to effect an arrest by whatever force is reasonably necessary), but does not have the same level of training or responsiblity.

It's a personal choice for the citizen who may find themselves in a similar situation.

 

[Kleanbore]

Why take the chance [of shooting]?
Answer: To prevent him from shooting you or to effect an arrest in order to prevent him from escaping his crime and/or from shooting other innocent victims.

I do not infer from the OP's description that any reason existed for the witness to believe that the use of deadly force was immediately necessary to protect himself or anyone else from the use of deadly force.

Now, if the witness had first-hand knowledge that the shooter had in fact committed murder (and had not fired in legal self defense, either as a citizen or as a peace officer), he could choose to attempt a citizen's arrest, should he decide to assume the very considerable risks attendant to that action. I wouldn't.

Should he choose do do so, could he shoot, under the circumstances described by the OP? Not in Colorado, as I read it. Here's the relevant part of 18-1-707:

6. A person who has been directed to assist a peace officer under circumstances specified in subsection (5) of this section may use deadly physical force to effect an arrest or to prevent an
escape only when:
(a.) He reasonably believes that force to be necessary to defend himself
or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or
(b.) He is directed or authorized by the peace officer to use deadly
physical force and does not know, if that happens to be the case, that the peace officer himself is not authorized to use deadly physical force under the circumstances.
7. A private person acting on his own account is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest, or to prevent the escape from custody of an arrested person who has committed an offense in his presence; but he is justified in using deadly physical force for the purpose onlywhen he reasonably believes it necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force.

OK. The witness went on his way, probably badly shaken.

Would he have been wiser to expose himself to the risks of being killed or maimed, or arrested, tried, convicted, and incarcerated, and having his possessions sold to pay for his defense and the civil damages?

I can't bring myself to see it that way.

Had the witness fired, would he have done something brave and proper, assuming that it turned out that he had seen a murder?

Why would that be? The situation was going to be resolved, without his stepping into it. The shooter was either be going to be caught and tried or, had his action been legal, the situation would be resolved legally.

Much downside, zero upside.

A friend of mine who is a former (and very good, highly trained) policeman tells me that his weapon will come out only when he is about to die.

I don't question that.

 

[Jeff White]

As a cop? I would yell, "Drop..." followed by several shots, followed by "...the gun!"

Very cute What movie or TV show did you get that one from? Hope you don't mind spending the next 15 years or so in prison.....

 

[Fred Fuller]

nd provides a convincing argument that a citizen's arrest, using all necessary force, may well have been justified

Only one problem with that here in NC, rainbowbob. There's no legal avenue for a citizens' arrest...

lpl
=====
http://www.jus.state.nc.us/NCJA/!apr97.htm

JUST ANOTHER STATUTE AT LAW
COMMENTARY ON THE NORTH CAROLINA
GENERAL STATUTES OF INTEREST TO
THE LAW ENFORCEMENT COMMUNITY


Ralph B. Strickland, Jr.
Agency Legal Specialist North Carolina Justice Academy

G.S. 15A-404

Volume 2 Number 4

April 1997

NO CITIZEN’S ARREST ALLOWED IN NORTH CAROLINA!

G.S. 15A-404 Detention of offenders by private persons.

(a) No Arrest; Detention Permitted. - No private person may arrest another person except as provided in G.S. 15A-405 [assisting law enforcement officers in making an arrest.] A private person may detain another person as provided in this section.

(b) When Detention Permitted. - A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:

(1) A felony,

(2) A breach of the peace,

(3) A crime involving physical injury to another person, or

(4) A crime involving theft or destruction of property.

(c) Manner of Detention. - The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.

(d) Period of Detention. - The detention may be no longer than the time required for the earliest of the following:

(1) The determination that no offense has been committed.

(2) Surrender of the person detained to a law enforcement officer as provided in subsection (e).

(e) Surrender to Officer. - A private person who detains another must immediately notify a law enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law enforcement officer.

There is no citizen’s arrest in North Carolina; there is only a citizen’s detention. There are two reasons why you should know this: (1) so that you can tell nonsworn individuals what their rights are in these circumstances, and (2) so that you will know what your rights are outside yourterritorial jurisdiction. Now that most officers are allowed to carry a handgun concealed when they are outside their jurisdiction, it is more important than ever to understand what you have a right to do when faced with the criminal behavior of another. The key is to simply remember that the right to carry concealed outside your territorial jurisdiction is to allow you to defend yourself; not to make arrests, stop crime or act as a sworn officer would in a criminal situation.

Let’s look at the sections of 15A-404 individually. First, in section (a) we learn that citizens may NOT arrest in North Carolina. This myth of a citizen’s arrest is taught by television and the movies, but does not reflect reality here in our state. While citizen arrests may be legal in other jurisdictions, it is not available to us here. What can be done is a detention that is based on probable cause to believe that one of a limited number of crimes has been committed in your presence. A detention, like an arrest, is a seizure under the Fourth Amendment; but an arrest allows moving the arrestee without his consent to a judicial official. A detention is just that; the suspect is detained, and while he may not leave, he cannot be moved without his consent. It is essential that you understand this point. A detention is a seizure without movement of the suspect; an arrest is a seizure and involuntary movement of the suspect.

The next section, (b), allows a detention only when you have probable cause to believe that a person has committed in your presence one of the following crimes:

1. a felony

2. a breach of the peace

3. a crime involving physical injury or

4. a crime involving theft or destruction of property.

Section (c) requires that the force used to detain the suspect be reasonable. It is generally true that an officer in his jurisdiction may use more force in making a detention than a private person. The law allows you greater latitude in the use of force because your job is the enforcement of the law, and you have been trained to use force correctly. But if you are not in your jurisdiction, then your right to use force becomes that of a private citizen. As an example, when presented with danger from another in a public place, a private citizen is under a duty to retreat unless in doing so he would be placed in greater danger. A law enforcement officer is never under a duty to retreat when enforcing the law; we may retreat tactically, but we are not required to.

Sections (d) and (e) are very simple. The detention must be as brief as is reasonably practicable. If you determine that no offense has occurred, release the suspect. Otherwise, contact the authorities, and turn him over to them. Don’t arrest and don’t move him. Of course, you may move him out of the sun, or to a chair or seat, or from one room to another for security purposes. But no movement to a magistrate’s office is allowed.

Probably the best option in such circumstances is to become the best witness you can be. Call for a law enforcement officer, protect yourself and your family, and wait for help to arrive. Check with you legal advisor or district attorney’s office for specific advice in this area. Thank you and good luck.

 

[JT1JT1]

What's interesting about this thread is there's a huge spectrum in what people here consider appropriate strategic responses to this situation.

What's unique about this scenario is there appears to be only a very small set of people in direct proximity to the event. i.e., one shooter, one victim and one witness.

But does your strategy change at all if you're among MANY witnesses, including CCW holders who are unknown to you and whose responses to the initial shooting are as varied as they are in this thread? What then?

 

[Kleanbore]

What's unique about this scenario is there appears to be only a very small set of people in direct proximity to the event. i.e., one shooter, one victim and one witness.

I must have missed that. It did happen on a major thoroughfare.

Don't forget possible security cameras.

 

[rainbowbob]

Only one problem with that here in NC, rainbowbob. There's no legal avenue for a citizens' arrest...

lpl:

What IS legally allowed in NC (according to the info you provided) is a citizen's "detention" under the following circumstances:

When Detention Permitted. - A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:

(1) A felony,
(2) A breach of the peace,
(3) A crime involving physical injury to another person, or
(4) A crime involving theft or destruction of property.

The difference between an "arrest" and a "detention" is described as follows:

A detention is a seizure without movement of the suspect; an arrest is a seizure and involuntary movement of the suspect.

Your source does end with this admonition - and I won't argue that it is not the best advice in MOST circumstances.

Probably the best option in such circumstances is to become the best witness you can be. Call for a law enforcement officer, protect yourself and your family, and wait for help to arrive. Check with you legal advisor or district attorney’s office for specific advice in this area. Thank you and good luck.

 

[Duke of Doubt]

JT1JT1: "What's interesting about this thread is there's a huge spectrum in what people here consider appropriate strategic responses to this situation."

I know. It's like the old joke about the varying definitions various branches of the Armed Forces have for the phrase "secure a building."

JT1JT1: "What's unique about this scenario is there appears to be only a very small set of people in direct proximity to the event. i.e., one shooter, one victim and one witness."

Yeah, I noticed that, too. It's like something out of a 1980s Kate Bush video. "Cloudbusting," maybe.

JT1JT1: "But does your strategy change at all if you're among MANY witnesses, including CCW holders who are unknown to you and whose responses to the initial shooting are as varied as they are in this thread? What then?"

Run.

 

[JT1JT1]

Actually, one thing I was thinking as I read all the responses is this: What would happen if all the people who posted on this thread so far were actually on the scene and doing what they wrote they would do?

I think it could be a huge mess. There would be people drawing and shooting until the original shooter dropped; there would be people drawing and shooting if they perceived hostile intent from the the original bad guy or anybody else with a gun; and there would be people bugging out in various directions. And nobody would really know the full story until later.

Given that, I think what I would do in such an ambiguous situation is 1) get out; 2) call 911 3) resolve to be as a good witness as possible.

This is not to disparage those whose first inclination is to render aid in unusual situations. I admire that. But in the face of such uncertainty, I can't see myself deploying lethal force if I had an opportunity to exit the scene safely.