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Where is the line? (DGU question)

Discussion in 'Legal' started by Trunk Monkey, Feb 10, 2019.

  1. Trunk Monkey

    Trunk Monkey Member

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    I work nights as a security guard. This happened at work, it wouldn't have happened under any other circumstances because I wouldn't have involved myself even to the extent that I did if it hadn't been required by my job.

    The place I work at is in the middle of an industrial park. It's surrounded by warehouses. None of them were open at the time. I was walking the fence line when I noticed a car randomly cruising the parking lots of the warehouses. Other than making sure they weren't scoping out my site they really weren't my business. So I was only keeping an eye on them as they got closer to my area.

    They must have noticed me because they car pulled up next to my fence and the passenger said something to the effect that not minding my own business was a good way to get myself shot. They gave me the stink eye for a second, then they took off.

    I was armed. I did not engage the passenger other than to say OK as I was backing up. I did call it in to the police but the car was long gone by the time the cops showed up.

    When they engaged me they had my undivided attention. When the passenger made the shooting comment I put my hand on my gun and I made the decision that if his hand came up into the window I was going to draw. ( there wasn't anything I would consider "cover" close enough to get to) and if there was any kind of weapon in his hand I was going to shoot.

    My question is at what point did I have the right to assume he meant what he said and that it was a legitimate threat? I have coworkers that would have had their gun out as soon as he said it. Some would have drawn discretely as soon as they pulled up to the fence. In general I wouldn't even touch my gun unless I could describe a specific action the other person took that convinced me an attack was imminent.

    I have no idea if the guy had a gun or not but he threatened to shoot me. At what point do I get to take him seriously?
     
  2. MedWheeler

    MedWheeler Member

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    As soon as you felt it was, an immediate threat, backed by the apparent ability and willingness to carry it out.

    So, in the specific situation in which you were, as soon as you became in fear for your safety.
     
  3. Trunk Monkey

    Trunk Monkey Member

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    I was in fear of my safety as soon as he made the shooting comment
     
  4. entropy

    entropy Member

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    I think I'd have been in the discreetly drawn camp, behind the leg.
     
  5. Trunk Monkey

    Trunk Monkey Member

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    This is a legal question not a tactical question.
     
  6. JohnKSa

    JohnKSa Moderator Staff Member

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    Depends on what action you're considering taking.

    If your desired action is to retreat and call 911, you can do that as soon as you feel the least bit threatened.

    If your desired action is to put your hand on your gun or to draw but keep your gun hidden, you can also do that just because you feel the least bit threatened. The key is that the gun has to remain hidden because showing the gun requires additional legal justification.

    If your desired action is to display/brandish your firearm, there is certainly going to be a need for some legal justification beyond just someone talking. I don't know the laws in CO, but it seems likely that there is a section which specifies what level of justification must be met before a gun can be brandished/displayed. In TX (sorry, I know you're not in TX and this probably doesn't apply to you--just giving an example) you can display a gun when force (but not necessarily deadly force) would be justified. Someone just talking to you probably wouldn't justify non-deadly force, but I suppose it might rise to that level depending on the combined circumstances of what they say, how they act, and whether it appears they have the means and intend to do something other than just talk. Keep in mind that TX law explicitly states that displaying a firearm (depending on how its done) is not necessarily considered to be using deadly force--some states don't make that differentiation.

    Obviously, if your desired action is to use deadly force, you would need to reasonably fear that you were in imminent danger of death or serious bodily injury. It's definitely going to take more than someone just talking--the person needs to display means (an obvious way to kill or seriously injure you--deadly weapon, obvious and significant disparity in physical strength, significant advantage in terms of numbers, etc.), motive (a plausible reason to want to kill or seriously injure you) and opportunity (some reasonable method for carrying out the crime). For example, a person brandishing a contact weapon (knife or club) from inside a car on the other side of a fence might really want to kill you, might have the means to do it, but doesn't have the opportunity since they can't get to you with their contact weapon.
     
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  7. BSA1

    BSA1 Member

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    The elements required to legal self-defense are;

    1. Opportunity
    2. Ability
    3. Jeopardy

    So to answer your question all three elements will be reviewed by the Police and D.A. if you use deadly force. These elements are too complex to discuss on these forums.

    Talking smack to a rent-a-cop is not legal justification for use of deadly or any force for that matter. It just comes with the territory. (fyi I have a lot of experience in private security).

    Are you a licensed and/or received training from your local Police or Sheriff Office?
     
  8. Trunk Monkey

    Trunk Monkey Member

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    So based on this I think I was where I should have been on the force continuum.

    He threatened (obliquely) to shoot me.

    I put my hand on my gun (which he may or may not have realised) and got ready to defend myself IF he escalated beyond a threat.

    In the state of Colorado you have to be justified in using deadly force before you can threaten deadly force. I'm NOT a lawyer but the way I read the menacing statute if I tell you I have a gun with the intent to intimidate you I've threatened deadly force.

    If the cops had witnessed the incident the guy in the car could have been arrested for aggravated menacing whether he had a gun or not because he IMPLIED that he did to scare me.
     
  9. Trunk Monkey

    Trunk Monkey Member

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    He didn't "talk smack to a rent-a-cop" he threatened to shoot me. That's a felony in Colorado.

    What bearing does this have on my actual question?
     
  10. Trunk Monkey

    Trunk Monkey Member

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    CRS 18-3-206. Menacing(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury.

    Menacing is a class3 misdemeanor, but, it is a class 5 felony if committed : a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or (b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon.
     
  11. herrwalther

    herrwalther Member

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    I think you handled the situation best. You did not draw but were prepared to. I am sure you got the legal 9th degree of when you can and can not draw your weapon from your employee training, I know I did when I worked briefly in armed security. Legally he did threaten you, and by most statutes you would have a right to self defense if you saw or believe you saw a weapon.

    Going forward stay vigilante. Have materials to capture a license plate number, make/model of the car etc. Give the police something to work with if it happens again.
     
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  12. BSA1

    BSA1 Member

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    I don't mean it as an insult. I have been threatened so many times (and occasionally attacked) that comments like that don't intimidate or make me feel threatened. Alcohol and just plain stupid often play a factor in such incidents.

    In the opinion of many low-life's private security officers are considered to be poorly trained and wanna be cops or as they are commonly called here "rent-a-cop." Like I said I have a lot of years of experience in private security (including checking warehouses alone at night) so I know what you felt when you were confronted.

    A lot. You are asking about what you legally could have done, not Tactics.

    Taking a approved training class and becoming licensed will teach you what the policies are of the police / sheriff and the D.A. where you work. They would offer you specific advice about your situation.

    You need to learn and understand what the definitions of Opportunity, Ability and Jeopardy are and how they are necessary to legally protect yourself. Plainly speaking all of those elements were not present in your incident.

    The Internet and your buddies at work are not good resources for information.

    Again don't take any of my comments as personal attack. You handled the situation well and most importantly went home alive and in one piece at the end of your shift.
     
    Last edited: Feb 10, 2019
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  13. Trunk Monkey

    Trunk Monkey Member

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    I gave the police the make model and license number the car. They were sitting right in front of me and I've been doing this long enough to know when I'm going to be making a report to somebody. I had their plate while they were rolling up on me.

    The problem is I can't prove they said what they said. Even if I'm sure there's video them pulling up to my fence and stopping and I could prove we had an encounter for me to say that they threatened to shoot me is he said, she said I said they did they said they didn't.

    Now if somebody calls in tomorrow morning and says it one of those warehouses was broken into then they might dig up the report and go find that car.
     
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  14. herrwalther

    herrwalther Member

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    Only way to fulfill that is invest in a decent body camera for yourself, if your employer allows it. The only one I had experience with is made by Muvi.

    http://www.veho-muvi.com/en-int/muvi_product/muvi-hd-pro/
     
  15. Old Dog

    Old Dog Member

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    Don't know where you're getting your definitions from, but typically, most law enforcement UODF policies describe "ability, opportunity and intent" as constituting "jeopardy." And one needs to be able to articulate all three as well as being able to depict why one's response was "reasonable and necessary." Taking that further, one is going to be on the hook for the whole "did you have any other options available?" thing ...

    The question is, if a subject states to you that he intends to shoot you, has the opportunity (normally looked at as distance), yet does not display a deadly weapon (the ability factor), how does this affect your response?
     
  16. Trunk Monkey

    Trunk Monkey Member

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    In my case I made a concious decision not to draw my firearm until I actually saw him take specific action.

    Also I want to CLEARLY point out that I was doing everything I could to retreat.
     
  17. lemaymiami

    lemaymiami Member

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    You did everything right as far as I’m concerned... particularly the part about calling it in afterwards... In fact I’d be okay with having your weapon drawn discretely under the circumstances.

    A former marine I worked with would say that your response would depend on “the weather, the situation, and the terrain”. Late at night, industrial area, no one else around...

    The only problem is that whoever responds to your situation might not read it the way I do - that’s why I like your actual actions that you’ve described... were probably best.


    I worked on the street as a patrolman, sergeant, and finally a commander- all those years ago. Most that I worked with had a solid feel for appropriate self defense actions and would always have that as their guide. There’s always plenty of time afterwards to consider the finer points of the laws that govern potential use of force.

    In short, you were able to complete your work shift and go home to your family... Next time, though, try to move to cover as casually as possible before the the conversation (or confrontation) starts... something we went to in training for all of our guys (and gals) on the street.
     
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  18. BSA1

    BSA1 Member

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    I learned it as AOJ. I understand that some agencies substitute "Intent" for Jeopardy but I am not comfortable using that term. AOJ help to prove Intent. The problem I have with using "Intent" is it is a state of mind. Intent can be demonstrated by physical actions. AOJ can be demonstrated more physically in Court and used to prove Intent.

    We are merely disagreeing on terminology. A sharp defense lawyer will hammer on how did you know what my defendant intended to do? I can use how the defendants actions placed me in Jeopardy and combined with Ability and Opportunity showed his Intent,

    Play on words I suppose but isn't that what is very important in Court?

    "It is important to understand that the justification of self-defense will be analyzed under the Reasonable Person Standard. This standard is described by Sean Maloney in his seminar as "what would a reasonable, prudent person have done in the same situation knowing what the defendant knew." The presence of Ability, Opportunity and Jeopardy will be analyzed from this standard."

    This link offers a pretty good explanation;

    http://www.secondcalldefense.org/ability-opportunity-jeopardy
     
    Last edited: Feb 11, 2019
  19. MedWheeler

    MedWheeler Member

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    To pick at semantics a little (and trial lawyers do!), the statement that "not minding your own business is a good way to get yourself shot" may not have actually been a direct threat. After all, the speaker never said that he would be the one shooting you (and that said shooting was indeed about to happen.) But it definitely warranted consideration.

    At any rate, if this had happened to me the way you say it happened to you, and I had responded the way you did, I'd be just fine with it all. I wouldn't even be here asking about it. ;)
     
  20. Trunk Monkey

    Trunk Monkey Member

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    There was an incident here in Colorado several years ago in which a Private Investigator was attempting to collect a debt from a business owner.

    At some point during their interaction according to the business owner the PI patted his suit jacket over his gun. He never displayed the gun and never said anything about a gun.

    He was arrested for aggravated menacing and spent a year fighting it in court before he was acquitted.

    I actually got to speak to the guy after the trial and his acquittal cost him tens of thousands of dollars AND the loss of his PI license. He also gave up his CHP voluntarily.

    Anyway I've got my answer you can feel free to lock this.
     
  21. MedWheeler

    MedWheeler Member

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    ^^ Yep, that was my point. If a prosecuting attorney can pick at semantics, so can a defense attorney. ;)
     
  22. lemaymiami

    lemaymiami Member

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    As a general idea, attempting to collect a debt while armed... doesn't strike me as a very good idea at all.... Entirely too much opportunity for the guy that owes to claim threat or intimidation (and that's probably how the business owner got the weapon carrier charged in the first place...). But, of course, that's purely speculation on my part.
     
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